Burrus v. Burrus ( 1878 )

Campbell, J.,

delivered the opinion of the court.

The only error assigned is “the insufficiency of service of process ’ ’ on plaintiffs in error; as heirs and devisees of the testator, to answer the petition of his executor to the Probate Court to order a sale of his real estate and declare the estate insolvent. A citation for the heirs and devisees was issued, and the return of the sheriff is, “ Executed August 21, 1867, by reading the within citation to [naming four of the parties] ; on James R. Burrus, by leaving a true copy of within citation at his place of abode, with a free white person over the age of sixteen years, he being absent from home.” All these heirs were minors. A guardian ad litem was appointed for them, who filed their answer in common form, and a decree of sale was made in accordance with the prayer of the petition. One of the petitioners was the guardian of the devisees and heirs of the testator, as stated in the petition.

This case is to be determined by the Code of 1857, in force in 1867, when these proceedings were had. Since the decision of Mundy et al. v. Calvert et al., 40 Miss. 181, it has been accepted as true that, under the Code of 1857, the return of process from the Probate Court by the sheriff must conform to the requirements of the Circuit Court law, in showing how the officer had executed it.

In Merritt v. White, 37 Miss. 438, it had been held that a general return of “Executed,” on original process from the Circuit Court, was not good ; and in Robertson v. Johnson, 40 Miss. 500, the same rule was declared as to process from the Chancery Courts,— a conclusion justified, perhaps, by art. 27, p. 544, Rev. Code of 1857, which declares that all process of any Chancery Court shall be executed in. the same manner as writs of the like nature from the Circuit Courts are required to 'be executed. No provision required process from Probate Courts to be executed or returned according to the requirement of the law for the process of Circuit Courts, and nothing in the Code of 1857 suggests such a thing. On the contrary, art. 20, p. 428, gives the Probate Court power to issue a summons for any person, etc., and provides, where it is “necessary or proper to enforce the appearance of the party, the court on the retunj of ‘ Summoned,’ and failure to appear, may issue an attachment,” and art. 21, p. 429, provides how all process of the Probate Courts shall be served. The Cod¿ of 1857 contains a complete system for the exercise of the jurisdiction and powers of the Probate Courts. Provision is made by art. 16, p. 428, for the sheriff to “execute and return” all process emanating from the court, while arts. 20 and 21 regulate the issuance and service of process in all cases in the Probate Court. There is no allusion anywhere to the Circuit or Chancery Court law in reference to pi*ocess, but the chapter on “ Probate Court ” contains all that pertained to that court, and left no occasion to resort for any purpose to other chapters for information as to the issuance, execution, and return of process of that court. It would seem to result from this, that the sufficiency of the service and return of all process of the Probate Court should be determined alone by reference to the provisions of the Probate Court law, and that the announcement in Mundy et al. v. Calvert et al., supra, finds no sufficient suppoi’t in the statutes, and indeed the opinion in that case does not indicate that the statutes were examined on this question ; and in no subsequent case has the subject been considered.

The ruling in Mundy et al. v. Calvert et al., supra, is that a general return of “Executed,” on process of the Probate Courts, is not sufficient, and that the rule prescribed for the return of the process of Circuit Courts is equally applicable to the Probate Courts. We think this an erroneous view of the Code of 1857, and that under it a general return of “Executed” or “Summoned,” without more, is sufficient.

In the case under consideration, the sheriff, in making his return, attempted to comply with the requirement of the Circuit Court law, by showing how he had executed the summons, and, in doing this, showed that he had not complied with the directions of the law; and, therefore, if the appointment of a guardian ad litem to represent the infants could not be legally made without summoning them, it was erroneous to proceed to a decree in this case, the infants not having been legally summoned to appear and answer the petition. If it was unnecessary to summon the infants, but was legal to appoint a guardian ad litem for them without summoning them, it was not erroneous to proceed to a decree.

In McAllister v. Moye, 39 Miss. 258, it was announced, for the first time in this State, that the Probate Court had no jurisdiction to appoint a guardian ad litem to represent infants defendant, until after notice to them by service of process or publication.

This case was decided under the act of 1846 (Hutch. Code, 728, sect. 4), which introduced into the Probate Court in this State the legal requiretnent to appoint guardians ad litem for infants. It was not claimed, in that opinion, that any statute required the service of process upon infants, but that the chancery rule required it, and therefore it should obtain in the Probate Court. The section of the act of 1846 cited above was substantially adopted in art. 32, p. 431, Code of 1857; but neither it nor any other article of that Code required an infant to be summoned in any proceeding in the Probate Court. It is the guardian who is to be summoned in all cases where a minor is interested ; and if he had no guardian, or the guardian failed to appear, or was personally interested, a guardian ad'litem was to be appointed. Art. 32, p. 431; art. 88, p. 446; art. 98, p. 448; art. 106, p. 451; art. 151, p. 463; art. 153, p. 464; art. 173, p. 469.

As stated above, the Code of 1857 contains a complete system of laws for the administration of the duties and powers of the Probate Court, and that is in the chapter on that subject, which is sui generis, and independent of the provisions applicable to other courts, except in so far as some other provisions may be made applicable in express terms to the Probate Court.

The issuance and execution' and return of all process of this court is regulated by the provisions of this chapter, applicable to it alone (arts. 16, 20, 21) ; the mode of proceeding against non-resident or absent parties is provided (art. 22) ; the subject of taking the depositions of witnesses is regulated by adoption of the law applicable to the Circuit Courts and Chancery Courts (art. 24) ; and there are regulations for the trial of issues by jury (art. 27), and for an appeal to the High Court of Errors and Appeals (art. 28), and for fieri facias to enforce a money decree of the court (art. 31). Art. 32 declares the conditions' on which the judgments of the Probate Court shall be conclusive on minors, viz. : Plis guardian, if resident in this State, “ shall be first served with process to appear and defend the interests of the minor, and if the guardian be a non-resident of the State', the mode of bringing in non-resideift parties shall be observed ; and if any guardian shall fail to appear, after service of notice or publication, or if the guardian should be personally interested, or if there be no guardian, the court shall appoint a guardian ad litem to protect the interests of the minor.” ..

In all this there is no requirement that a minor shall, in any case, be cited. In every instance his guardian is to be summoned or cited ; and if he is personally interested, or fails to appear, or if there is no guardian, a guardian ad litem was required to be appointed. No statute required the minor to be cited. Why cite him? If cited, and present, he could do nothing; could not appear; could not consent to anything; could not appoint an attorney. The court is his protector and the guardian of his interests -, and the statute required the court to appoint a guardian ad litem, as a further means of protecting the interests of the minor, in' all which the minor must have been passive and could take no part. It is a reasonable assumption that, if it had been intended to require the minor to be cited, befoi’e the appointment for him of a guardian ad litem by the Probate Court, it would have been so declared in the statute regulating this matter in the Probate Court, as it was expressly declared as to th*e Chancery Court in art. 52, p. 548. The “ Probate Court ” law furnished a guide for every step in the exercise of the powers of that court. It is neither necessary nor allowable to resort to the regulations for other courts in determining the practice of the Probate Court, except where express reference, for convenience, is made in “ Probate Court” law to the provisions of law for other courts.

In Winston et al. v. McLendon, 43 Miss. 254, these views were indicated to some extent, and in Saxon et al. v. Ames et al., 47 Miss. 565, the subject was further elucidated. Impressed by the importance of the subject, we have thoroughly investigated and maturely considered it, and announce as our conclusion that it was not a prerequisite to the appointment of a guardian ad litem, under the Code of 1857, that the minors should first have been cited, but that the court had the right to appoint a guardian ad litem without process, for the minors, and to proceed to a decree after answer of the minors by their guardian ad litem thus appointed. Besides the suggestive fact that the Code of 1857, in art. 52, p. 548, of the “ Chancery Court” law, requires the minor to be made a party, by process or publication, before the appointment of a guardian ad litem, and that the “ Probate- Court” law does not make this requirement, is the important consideration of the nature of the functions of the Probate Court, and the peculiar situation of minors in their relation to society. The Probate Court had full and exclusive jurisdiction of minors’ business, embracing the guardianship of their persons and estates; and infants are regarded as without discretion, and therefore without legal capacity, except to a very limited extent, bounded by necessity. They cannot enter an appearance to a suit, nor appoint an attorney; therefore the duty of the court to appoint a representative for them, to appear and make their defence. A person sui juris may appoint an attorney, whose appearance for him supplies the want of process for him, and gives the court jurisdiction over him as if served with process. Why should it be thought strange that the Probate Court, charged with the business of infants and the duty of their protection, should possess the power to appoint a guardian ad litem as to any matter affecting the interest of the infant in that court, ■without citing the infant, who could do nothing if cited and present? This court had power to appoint general guai’dians for all the infants in the county under fourteen years of age, without notice, and notice to those over fourteen years of age was necessary only because the statute gave them the right to select guardians, and required notice to them before appointment. The State assumes the guardianship of those classes of society deemed incapable of caring for themselves, and has established a tribunal to extend the care which the State has considered necessary for their interests. It is entirely free from doubt that the State had the right to confer on the Probate Court power to deal with the estates of infants in such way as the State chose to determine. It could, by statute, require process to issue and be served on the infant, or not. It could require a guardian ad litem for the infant, or dispense with it, as legislative discretion might conclude. Having charged a court with jurisdiction of the business of infants, as a means of performing the State’s duty to this class of citizens, it was the province of the State to declare the rules to be observed by this court in dealing with this business. The Legislature may, by special act, authorize the sale of the land of an infant, without any notice to the infant. McComb and wife v. Gilkey, 29 Miss. 146. See also Williamson et ux. v. Williamson et al., 3 Smed. & M. 715; Boon v. Bowers et al., 30 Miss. 246. And it may, by general law, delegate to the court established by the Constitution to attend to infants’ business the jDower to deal with their estates, under such safeguards for the protection of their interests as it may prescribe. The appointment of guardians had its origin in the theory that it is the right and duty of the 'sovereign to take care of all the infants within the realm, and of their affairs, because of their imbecility and want of understanding to act for themselves, and therefore the sovereign, through delegated authority, assumes to manage and control the business of infants. With a concession of the right of the State to assume the guardianship of the affairs of infants must follow a recognition of the right of the State, in discharging this duty, to delegate to its courts the power to appoint for the infant a general guardian, or a guardian ad hoc, to stand in the room and stead of the infant, and appear for him in all courts with the same effect as the attorney of one sui juris may appear for him. This is the theory on which the “ Probate Court” law is constructed, as found in the-Code of 1857. It contemplates that an infant shall in all cases be represented, in proceedings in the Probate Court, by his general guardian, and that, if there is no such guardian, or he fails to attend and represent his ward, or if he has an adversary interest, that a guardian ad litem shall be appointed, who is the representative of the infant.

In no case is an infant required to he summoned. In every case his general guardian, if he have one in this State, must be. He must have a guardian in court to represent him. That cannot be dispensed with without error; but in no case is it necessary to cite an infant before appointing a guardian ad litem, because no law requires .it. In Circuit Courts and Chancery Courts the rule is different, made so by practice, and in our Probate Courts by statute. In those courts no mention is made, in the initiatory proceedings, of the infancy of a defendant, who is proceeded* against as an adult, except as changed by statute requiring service of summons on not only the infant, but on his father, mother, or guardian, if he has any in this State. Those courts proceed according to the practice established without statute, or as regulated by statute. The Probate Court was a peculiar one, which did not proceed according to the course of the common law, but was regulated by statute; and, as above shown, the statute (Code 1857, p. 489, arts. 63, 64) did not apply to the Probate Court. It seems surprising that it should ever have been supposed that those articles did apply to the Probate Court. They are found in the chapter on “ Circuit Court,” under the heading of “ Original and Mesne Process:” The language is applicable to a Circuit Court, and that of art. 63, held in Mundy v. Calvert, 40 Miss. 181, to be applicable to the Probate Court, is confined in terms to the Circuit Court, as shown by the proviso which speaks of the “ clerk of the Circuit Court,” and excludes the idea of the process there spoken of being that of any other than the Circuit Court.

It may be the better policy to require service of process on all infants, as a condition precedent to a valid order affecting their interests in the Probate Court, but it is manifest that the Code of 1857 did not require it; and, believing that it was competent for the Legislature to dispense with it, we see no power in the court to require it.

Decree affirmed.