Lloyd's adm'r v. McCauley's adm'r , 53 Ky. 535 ( 1854 )

Judge Stites

delivered the opinion of the court.

In September, 1852, the administrator of William McCauley, deceased, filed his petition in the Louisville chancery court, against the administrators and adult and infant heirs of Williamson Lloyd, deceased, to inforce a lien-for the payment of the balance of the purchase money alleged to be due for a tract of land in Jefferson county, sold by McCauley to Lloyd during their lives.

Process was issued thereon, directed to the marshal of said court, and was, by a special bailiff appointed for that purpose, executed on all the parties in Nelson county, where they resided. His return was in the usual form, and without any affidavit.

A guardian ad litem was appointed for the infants, and after his answer was filed, on the 21st January, 1853, a judgment was rendered in conformity with the petition, inforcing the lien, and subjecting to sale so much of the land as would suffice for the payment 'of the debt, interest, and costs.

The marshal, it seems, on the 21st May, 1853, sold the entire tract, under the decree, for $2,976 — a sum exceeding the debt some $500. Mrs. McCauley, the widow of the intestate, bought it, and in a few days, for an advance upon her bid, she sold to R. K., Summers, who was substituted in her stead as purchaser, and to whom the deed was made by order of court approving the sale, on the 24th June, 1853. On the return of the marshal’s report he was allowed $43 95', as commission for making the sale.

On the 12th July following, the representatives and heirs at law of Lloyd, by their petition, to which the purchaser and other necessary parties were made defendants, asked for a re-hearing .and review of the cause, and prayed that the decree and sale might be set aside. Various causes are assigned for a re-hearing, some apparent in the record, and others alleged to exist outside of it. The most prominent of which, as relied on by counsel in this court, are — 1st. That the defendants all lived in Nelson county, and were there when the bailiff executed the process, and that, as the marshal had no right thus to delegate his power to any one out of Jefferson county, they were not lawfully served with notice, and the bailiff’s return was insufficient. 2d. That John W., Louisa, and Fanny M. Lloyd were infants under the age of fourteen years, that there was no such service upon them as the law requires, and that, as to them, the decree is void. 3d. That the allowance to the marshal was illegal and oppressive, and that the price obtained for the land was grossly inadequate in consequence of the fraudulent and illegal acts of the marshal and purchaser.

This petition was answered, the material allegations denied by the defendants, and various depositions taken and read by the parties. Before the trial, Forman, the bailiff, was permitted to amend his return by filing an affidavit, in which he substantially states, “that£>n the 11th of October, 1852, in Nelson county, at the residence of Fanny Lloyd the administratrix of Williamson Lloyd, a defendant to the suit, and mother of the infants, in the presence of McCauley’s administrator and of said Fanny, he delivered to each of the infant defendants, Louisa, John W., and Fanny M. Lloyd, as well as to said Fanny, a copy of the summons made out by the clerk on the 23duSep-tember, 1852, and said suit and its object was then and there spoken of by McCauley’s administrator tq said Fanny, who understood it. The chancellor, on final hearing, dismissed the petition, and from that judgment the representatives and heirs of Lloyd have appealed.

1. By tlio act of 1835 the marshal of the Louisville chancery court had power to serve process any where in the state. (3 Stat. Law, 157.) The 10th section of the same act allows him to appoint a bailiff, by warrant, “specially to execute any piocess named ins’d warrant.” The Code does not take away the power of the marshal to appoint a bailiff, but it prescribes that in a case of service of process by any other than the officer to whom it is directed, “that his affidavit thereon shall be proof of service.” This section applies to bailiffs appointed by the marshal of the Louisville chancery court. 2. It is necessary, (Code of Practice, section 108,) where process' is against infants under 14 years old, that service be upon the infant and upon his father or guardian, or if neither of them can be found, then upon the mother or any white person having the care or control of such infant, or with whom they may live.

The first questions for our consideration are whether the marshal had the right to appoint a bailiff to execute process in another county, and if so, is the return such as would authorize a procedure against the infants under the age of fourteen years, or other defendants, except the administratrix ? The 9th section of the act of 1835, establishing the Louisville chancery court, (3 Stat. Law, 157,) authorizes the marshal to execute process “throughout the state;” and the 16th section of the same act permits him to appoint, by his warrant, a bailiff “specially to execute any precept named in said warrant.” The Code of Practice, sec. 074, requires that the proceedings of said court shall conform to its provisions respecting actions by equitable proceedings, subject to the modifications contained in the 3d chapter, title 14. The powers conferred on the marshal by the act of 1835 are not taken from him, but section 100, of the Code, prescribes by whom process, shall be served, and when served by any one appointed by the officer to whom it is directed, that his affidavit indorsed thereon “shall be proof of the time and manner of service.” This section is not affected by any modification in tbe chapter above referred to, and must apply as well to bailiffs appointed by the marshal, as to other persons. If then an affidavit is requisite to make valid a return made by another than the officer to whom the process is directed, which is manifest, it cannot be dispensed with by a bailiff, and is necessary to verify the time and manner of service by him.

In this case the affidavit only embraces Mrs. Fanny Lloyd, and Louisa, John W., and Fanny M. Lloyd, the children under fourteen years of age, and the return as to the other defendants not named therein, (except Wiginton, who may be affected by the service upon his co-administrator,) is insufficient for want of the proper verification. But it is insufficient, in our opinion, as to the infants under the age of fourteen. Section 108, of the “Code of Practice,” prescribes that “where the defendant is an infant, under the age of fourteen years the service must be upon him, and upon his father or guardian, or, if neither of these can he found, then upon his mother, or any white person having the care or control of the infant, or with whom he lives.”

3. The affidavit of the bailiff of the marshal of the Louisville chancery court showed a service by a bailiff, upon the infant and upon the mother, without showing that the father or guardian could not be found — it was held insufficient service, and a judgment founded thereon erroneous and void.

The proof shows, that at the time of the attempted service, indeed after the decree was rendered, Louisa, Fanny M., and John W. Lloyd, were infants under fourteen years, and the return, as amended, only shows a service upon the mother and infants at the same time, without pretending to state that “the father or guardian” could not be found — the only contingency upon which a service on the mother is allowed. It is true, in this case, the death of the father appears from the pleadings, but there may have been a guai’dian, wiio was entitled to notice, and the contrary does not appear with sufficient certainty. We are not prepared to say whether such a return, if made by an officer under the obligation of an oath, with the presumption of a discharge of duty in his favor would be sufficient, nor is it now necessary; but when made by a mere agent of the officer, not acting under oath, in whose behalf no such presumptions arise, it is insufficient.

Under these views the judgment of the court below in directing a sale of the land is deemed void as to the infant and adult heirs of Williamson Lloyd, and as such, should have been set aside, together with the proceedings thereunder.

Wherefore, said judgment is reversed, and cause remanded with directions to set aside the former judgment and sale thereunder, and for other proceedings consistent with this opinion.