Pike County IL Archives Court.....Sconce, V Whitney 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:01 pm

Source: Records Of Cases Illinois
Written: 1850

Harrison Sconce et al., plaintiffs in error, v. James W. Whitney, 
administrator, defendant in error.

Error to Pike.

In chancery, the summons must be served by copy. (a)

Where the complainant chooses to proceed against infants under the statute, 
without service of process, it is the duty of the court to exact of the 
guardian a vigorous defense of their interests, and it is wrong to take a bill 
for confessed against them, under any circumstances.

The bill in this case was filed to procure the re-conveyance of certain lands. 
The respondent died after the bill was filed, and proceedings were had against 
his survivors, and a decree entered upon the prayer of the bill in favor of 
the complainant. The heirs of the respondent, some of whom were minors, were 
never served with process, nor were they represented in the case. The widow of 
the first respondent married Sconce, one of the plaintiffs in error. The 
process was served upon one of the respondents by copy, and upon others by 
reading. The decree was rendered by Minshall, Judge, at the March term, 1850, 
of the Pike Circuit Court. A guardian ad litem was appointed for the infants, 
who did not appear or answer for them.

C. L. Higbee and J. Sibley, for plaintiffs in error.

There was no service of process on Mary Sconce, the wife of plaintiff in 
error. Service on the husband is not a service on the wife, where her property 
is the subject matter of the suit: 2 John. Ch. R., 139; 9 Vesey Ch. R., 485; 6 
Madd. Ch. R., 172.

There is no appearance of the guardian ad litem, of the infants before the 
final decree. No default or decree, pro confesso, can be entered against them: 
3 Harrison, 603; 3 J. J. Marshall, 544; 5 Call, 459; 4 Gilman, 370.

Browning & Bushnell, for defendant in error. 

Caton, J.  There are objections to this decree which are insurmountable. Mrs. 
Sconce was never properly brought into court. The most that can be said, is, 
that the process was served upon her by reading, when the statute required 
that she should be served by copy. The infants were never served with process 
in any way, nor did their guardian file any answer in their behalf. The court 
should have compelled the guardian to answer; and it was wrong for the court 
to take the bill for confessed as to them, under any circumstances. It was the 
duty of the Circuit Court to see that the guardian performed his duty for 
which service a provision is made for his compensation. Particularly where the 
complainant chooses to proceed against infants under the forty-seventh section 
of the twenty-first chapter, Revised Statutes, without service of process, as 
appears to have been the case here, it was the duty of the court to exact of 
the guardian a vigorous defense of the infants' interests. In this case, so 
far from that having been done, not even a formal answer by the guardian was 
required, but the bill was taken for confessed; precisely as if they were 
capable of protecting their own interests; and there was no duty resting upon 
the court, or the guardian, to protect them. Were such a practice once 
sanctioned, there would be an end of all security to infants. If a complainant 
will take a decree under such circumstances, either through design or 
inadvertence, he must not expect to sustain it in this court. 

Let the decree of the Circuit Court be reversed, and the suit remanded.

Decree reversed.

-----------------------
(a) R. S. 1874, ch 22, sec 11.

(b) As to infant defendants, see Enos et al. v. Cappe, post 255; Rhoads v. 
Rhoads, 43 Ill., 239, and cases cited: Waugh v. Robbins, 38 Ill., 182 
(annotated edition) and note; Hall v. Davis, 44 Ill., 494 (annotated edition), 
and note; Hitt v. Ormsbee, post 166; Reddick v. State Bank of Ill., 27 Ill., 
145.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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