Cook v. Mitchell

Decided February 12, 1880

Court of Appeals of Kentucky · decided 1880-02-12

Service of Process on Infants. When a summons is delivered to infants and a copy left with their mother, with whom they resided, such process is properly served. Answer by Guardian Ad Litem. Where the record fails to show that a guardian ad litem was appointed, one filing an answer purporting to be such guardian is a mere volunteer and such answer is ineffectual.

Decided 1880-02-12

¶1Opinion by

Judge Pryor:

¶2It is not denied that the summons was delivered to the infants, or that the mother with whom they resided was served by delivering a copy to her, and, this fact appearing, the purposes of the code have been answered by the party having a summons regularly served upon one whose duty it is to protect the rights of the infants. The affidavit filed, to the effect that the infants had no guardian, is sufficient, but the trouble arises in not having a guardian ad litem to answer. There is an answer filed by one purporting to be the guardian ad litem, but he must be regarded as a mere volunteer, as no appointment was ever made. The executors are made appellees in this court, and are not objecting to the manner in which the claim is proven.

¶3Judgment is reversed for the reason alone that no guardian ad litem was appointed by the court to defend, and cause remanded for further proceedings.