Hibbler v. Sprowl , 71 Ala. 50 ( 1881 )

BBICIvELL, O. J.

The conveyance of the lands, made to his children and grandchildren by James L. Hibbler, constituted them tenants in common. The grandchildren were, of consequence, materially interested in the subject-matter, and necessary parties to the suit. As is shown by the bill, they were infants, residing with their parents. The 23rd Buie, of Practice prescribes the mode in which summons issuing to them must be served, and is exclusive of all other modes of service. The parents being in life, service upon one of them for the infants must have been made. There is no authority for service upon them personally, whether of tender years or closely approaching majority. The children of Walter D. Windham were personally served — there was no service for them on either of the parents. It follows they were not regularly before the court; and the appointment of a guardian ad litem for them was premature and erroneous. For all the infant defendants a guardian ad litem was appointed, though the bill, verified by affidavit, averring their infancy, omits to state whether they were above or under the age of fourteen years, nor was an affidavit filed stating the fact. This was violative of the 26th Buie of Practice, a strict observance of which has always been required to support decrees against infants. These are errors compelling a reversal of the decree, and we do not deem it proper to consider any other of the assignments of error, as it may be necessary to retake the testimony so far as the infants are concerned. The adult defendants are doubtless concluded by the testimony already taken; but as the infant defendants are not, and may hereafter possibly present a different state of facts, we leave all other questions undetermined.

Reversed and remanded.