De La Hunt v. Holderbaugh

58 Ind. 285

• Court: Indiana Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinion

Biddle, C. J.

Complaint by the appellee, against the appellants, to recover the possession of certain lands, to quiet the- title thereto in the appellee, and for other relief.

Answer and trial by the court upon an agreed state of facts. Finding for appellee, that said lands were subject to a lien for certain taxes paid thereon, but not as to the title of the land.

The appellee moved for a new trial. His motion was overruled, and exceptions reserved; but as no cross errors are assigned, we give it no further notice.

Judgment declaring a lien on the land for taxes paid by appellee, and against the appellants for costs.

Appeal.

It appears from the finding of the court, that Thomas J. De La.Hunt, one of the defendants below, was a minor at the time the suit was tried. The return of service od the summons by the sheriff was as follows:

“ Served as commanded by reading in the hearing of Mrs. De La Hunt and son,” etc.

This, as it appears by the return, is not a sufficient service on Thomas J. De La Hunt. No one can tell from the record, whether the “son” was Thomas J. De La Hunt or not. There was no appointment of a guardian ad litem for the minor, and no answer for him filed, except the general answer,for all of the defendants by attorney. . .

These points are properly reserved in the record, and presented by the brief of the appellants.

1. As to the first point: The summons must be served on an infant in the same manner as upon an adult; and, when it does not appear that an infant was served, the proceedings as to him will be held erroneous on appeal. Martin v. Starr, 7 Ind. 224. And an answer by guardian ad litem must be filed. Pugh v. Pugh, 9 Ind. 132; Alexander v. Frary, 9 Ind. 481; McEndree v. McEndree, 12 Ind. 97; Abdil v. Abdil, 26 Ind. 287; Blake v. Douglass, 27 Ind. 416; Wells v. Wells, 6 Ind. 447;

2. An infant cannot answer by attorney. Timmons v. Timmons, 6 Ind. 8.

We think the judgment decreeing a lien on the land of Thomas J. De La Hunt, the minor defendant, for want of a proper service upon him, and for want of an answer by guardian ad litem, is erroneous.

3. Another point is made which goes to the adult appellants. They demurred to the complaint, hut, before the demurrer was decided by the court, they answered to the action. There is no error in this. They must he held as having waived the demurrer.

The judgment as to Thomas J. De La Hunt is reversed; as to the other appellants, it is affirmed, at their costs. Cause remanded for further proceedings as to Thomas J. De La Hunt.