Preston v. Dunn
Supreme Court of Alabama
Appeal from the Chancery Court of Mobile. Heard before the Hon. J. W. Lesesne. This bill was filed in March, 1853, by the appellant, Franklin Preston, an infant suing by his next friend, to redeem a tract of land, which had once belonged to his father, who mortgaged it in 1836 to C. & A. Batre, under which mortgage it was sold, by decree of the Chancery Court, in 1841, and purchased by the defendant.
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Appeal from the Chancery Court of Mobile. Heard before the Hon. J. W. Lesesne. This bill was filed in March, 1853, by the appellant, Franklin Preston, an infant suing by his next friend, to redeem a tract of land, which had once belonged to his father, who mortgaged it in 1836 to C. & A. Batre, under which mortgage it was sold, by decree of the Chancery Court, in 1841, and purchased by the defendant. The bill in the foreclosure suit was filed in April, 1839 ; and the defendant Preston filed his answer on the 20th of May, and soon afterwards died, leaving no children at the time of his death,…
1Opinion of the Court
GOLDTHWAITE, J. —
It may be conceded that, under our decisions, there was no service against the infant defendant in the suit to foreclose (Hallett v. Walker, 1 Ala. 379; Johnson v. Hainesworth, 6 Ala. R. 443; Hodges v. Wise, 16 Ala.); and it is also clear, upon the authorities cited, that the appointment of a guardian ad litem, when service might have been, but was not, perfected upon the infant, is an irregularity which is fatal on error. But we do not understand these cases to go any further, although it is said in Hodges v. Wise, supra, that as the infant defendants were not before the…
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