Myers v. Myers

6 W. Va. 369, 1873 W. Va. LEXIS 43

• Court: West Virginia Supreme Court
• Decided: July 12, 1873
• Status: Published

Opinion

Paule, Judge.

The bill in this case was filed by a purchaser from one of a number of heirs at law, of a party dying intestate, for a partition of real estate. Some of these heirs are infants, for whom a guardian ad litem was appointed, and who filed an answer on their behalf. Two of them however, to-wit, E. J. Tennant and Telva Tennant are not named in any summons appearing in the record. The bill however makes them parties Defendants, and the first decree entered in the cause recites that the cause came on to be heard upon the answer of the infant Defendants, by their guardian ad litem, order of publication duly executed as to the absent Defendants, process duly executed on the other Defendants, &c. An infant can only make de-fence by a guardian ad litem, and one should be appointed by the court for that purpose. Parker and others vs. McCoy and others, 10 Gratt, 594. The record does not show that any guardian ad litem was appointed for these infant Defendants, although it does for others, nor that any answer was filed on their behalf. The language of the bill and of the decree therefore may be strictly true, without its being seen by this Court that these infants have been properly made parties, or have appeared and been properly defended. The record not disclosing the fact that they were before the Court in the only- way in which they can appear and defend, this Court must regard the proceedings as fatally defective. The decrees entered in this cause must be reversed with costs to the appellant Jacob Myers, and the cause is remanded to the Circuit Court of Monongalia county, with leave to the Plaintiff to- make additional parties, and for further proceedings.

Hoffman and Moore, Judges, concur in the foregoing opinion.