Chalfant v. Monroe , 33 Ky. 35 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

This appeal calls in question the following judgment:— « This day came the plaintiffs by their attorney, and “ upon the motion of the said plaintiffs, it is ordered that “William K. Wall be appointed guardian ad litem to “ the infant defendants aforesaid; and the said defen- “ dants being solemnly called, came not, but made de- “ fault, and the said administrator and infants, by their “ said guardian, failing to enter any defence herein, “ therefore it is considered by the court, that the said “ plaintiffs recover against the said defendants, the sum “ of five hundred and forty dollars, the debt, &c. and “ also their costs, &c. to be levied of the assets in the “ hands of the administrator to be administered, and « of the real estate which has descended to said infant “ heirs from their .s,aid ancestor.”

Such a judgment cannot stand.

First. No judgment by default should ever be rendered against infants. Nor was it proper to render a judgment against the infants in this case without any defence or appearance by their guardian; and the more especially, as it does not appear that he ever assented to his appointment, or had ever any notice of it.

Second. It was erroneous to render a judgment against the administrator and heirs to be levied jointly and at the same time. The judgment in such a case, should direct the levy to be first made of the personal assets. Leathers vs. McGlassen, 3 Mon. 224.

Wherefore, it is considered by this Court, that the said judgment of the Circuit Court be reversed, and the cause remanded.