57 KY 558 - Pond v. Doneghy

Judge Simpson

¶1delivered the opinion of the court.

¶2The slaves in contest in these consolidated cases were claimed by Selina'J. Pond, to be the property of herself and her children; and on her petition the plaintiffs in the action were required to make her and' her children defendants. Thereupon the following entry was made on the record, viz:

¶3“This day came the parties aforesaid, by their ‘ counsel, and by their consent Mrs. Selina J. Pond, ‘ wife of defendant Pond, and her children, are made ‘ parties to this suit.”

¶4No process was served upen the children, nor was there a guardian ad litem appointed to defend for any of them, although a majority of them were infants.

¶5The legal effect of the foregoing order was only to make the children parties to the action, but it did not bring them into court, nor dispense with the service of process upon them.

¶6No judgment can be rendered against an infant until after a defense by a guardian. (Civil Code, section 55.) Nor can a guardian be appointed until after service of the summons in the action as directed in the Code, (section 56,) unless the infant be legally before the court in some other mode.

¶7The judgment in these cases subjects the slaves to the payment of the plaintiffs debts, without tlje in*561fant defendants having been brought before the court, although the record shows that they were directly interested in the determination of the questions involved in that decision. The judgment therefore is erroneous, and must be reversed; and as the children of Mrs.” Pond, when regularly brought before the court, will have a right not only to object to the depositions which have been heretofore taken, but also to introduce other evidence into the cause, it would be permature to express any opinion on the present state' of preparation, as to the liability of the slaves in contest for the payment of the husband’s debts.

2. A mere order of court, by consent of counsel, “ that infants be made parties ” to a suit, does not have the effect to make them parties, so as to authorize the court to proceed against them.— And if the circuit court does proceed it is ground of reversal in the court of appeals, without any application to the circ’t court to correct the error. It is more than a clerical error.

¶8The rendition of ajudgment, before a defense by a guardian for the infant defendants, was not a clerical misprision, or amere hearing of the action before it stood for trial, and therefore not a ground for an appeal until it had been presented and acted upon in the circuit court; but it was an error of the court, and, as it appears in the record, is such an error as is available for'a reversal in this court.

¶9Wherefore, the judgment is reversed,, and cause remanded that the children of Mrs. Pond may be brought before the court, and for further proceedings consistent with this opinion.