In Illinois, a decree against a minor is subject to attack, by
an original bill, for error apparent on the record, for want of
jurisdiction, or for fraud.
In Illinois, the rule is that a decree against an infant is
absolute in the first instance, subject to the right to attack it
by original bill, but until so attacked, and set aside or reversed,
on error or appeal, it is binding to the same extent as any other
decree or judgment. The right to so attack it may be exercised at
any time before the infant attains his majority, or at any time
afterwards within the period in which he may prosecute a writ of
error for the reversal of such decree.
A decree is subject to attack by original bill for fraud, even
after judgment in the appellate court; but a party, whether an
infant or adult, against whom a decree is rendered by direction of
the appellate court, cannot impeach it, by bill filed in the court
of first instance, merely for errors apparent on the record, that
do not involve the jurisdiction of either court.
An infant, by his
prochein amy, having elected to
prosecute an appeal to the Supreme Court of Illinois from the
decree rendered in the original suit brought by him, and having
appeared by guardian
ad litem to the appeal of the
cross-plaintiffs in the same suit, is as much bound by the
action
Page 134 U. S. 651
of that court in respect to mere errors of law, not involving
jurisdiction, as if he had been an adult when the appeal was
taken.
In Illinois, a cross-bill is regarded as an adjunct or part of
the original suit, the whole together constituting one case, and
process against the plaintiff is not necessary upon a cross-bill,
even where he is an infant.
The plaintiff, by his bill, claimed to own certain real estate,
by inheritance from his father, to whom the defendants had conveyed
it by deed, absolute in form, and prayed for a decree confirming
and establishing his title. The defendants, by cross-bill, alleged
that the deed was made and accepted for the purpose of placing the
title in trust for the benefit of one of the defendants, and asked
a decree to that effect.
Held that the subject matter of
the cross-bill was germane to that of the original bill.
The statutes of Illinois relating to suits by infants are not to
be interpreted to mean that no suit in the name of an infant by
next friend can be entertained unless such next friend is selected
by the infant. Nor does the right to bring such a suit depend upon
the execution by the next friend of a bond for costs, though he may
be required to give such bond before the suit proceeds to final
judgment and execution.
While a guardian
ad litem or
prochein amy of
an infant cannot, by admissions or stipulations in a suit in
equity, surrender substantial rights of the infant, he may by
stipulation assent to arrangements which will facilitate the trial
and determination of the cause in which such rights are involved,
and the infant will he bound thereby.
Appeals and writs of error may be taken to the Supreme Court of
Illinois held in the Grand Division in which the case is decided,
or, by consent of the parties, to any other Grand Division. A
guardian
ad litem or next friend of an infant may consent
that the case in which the infant is a party be heard in some other
Grand Division than the one in which it was decided or at a term of
the Supreme Court earlier than such appeal or writ of error would
be ordinarily heard, and may waive the execution of an appeal bond
by the opposite party.
An appeal bond is not essential to the jurisdiction of the
Supreme Court of Illinois, any more than in this Court, where the
appeal is allowed and a transcript of the record is filed in due
time, although the appeal may be dismissed if such bond is not
executed in accordance with the rules or the order of the
court.
Case stated in which a husband is held not to be an incompetent
witness under the statutes of Illinois in support of his wife's
claim to property.
Various charges of fraud and collusion upon the part of a
guardian
ad litem examined and held not to be
sustained.
This suit involves the title to real estate of considerable
value in the City of Chicago, of the possession of which the
Page 134 U. S. 652
appellant, who was the plaintiff below, claims to have been
deprived by certain proceedings in the courts of Illinois to which
Simon B. Buckner, his wife, and others were parties. The relief
sought is a decree declaring those proceedings to have been
erroneous, fraudulent, and void as to the plaintiff and adjudging
not only that such estate be restored to him, but that Buckner and
wife be held as trustees
ex maleficio, with liability to
account for the income of the property.
The history of the plaintiff's claim to the property, as well as
of the proceedings in the state courts the integrity and legal
effect of which are assailed in the present suit, must be given
before examining the grounds on which he seeks a reversal of the
decree.
Major Julius J. B. Kingsbury, of the United States army, died
intestate on or about the 25th of June, 1856, seised of lots
designated five and six in block thirty-five on the original map of
the Town of Chicago, and also of that part of the east half of the
northwest quarter of section nine in township thirty-nine north of
range fourteen east of the third principal meridian, which lies
east of the North branch of the Chicago River and south of the
center of Ontario Street, in Cook County, excepting, however, a
small portion of the last-named tract previously conveyed by him to
Buckner.
The intestate left surviving him his widow, Jane C. Kingsbury,
and two children, Mrs. Buckner and Henry W. Kingsbury, the father
of the appellant. These children were his only heirs at law.
By deed duly executed and acknowledged on the 15th of May, 1861,
Buckner and wife, "in consideration of the sum of one dollar, and
of the natural love and affection" of the grantors for the grantee,
conveyed to Henry W. Kingsbury, the brother of Mrs. Buckner and at
that time a lieutenant in the United States army, one undivided
half of the above lots five and six, and all their right, title,
and interest in the "Kingsbury Tract," containing thirty-five
acres, more or less, being the south half of what then remained of
the northwest quarter of section nine, township thirty-nine, range
14, in Cook County, after deducting therefrom the Town of
Wabansia,
Page 134 U. S. 653
to have and to hold the same to the grantee, his heirs and
assigns, forever, the grantors covenanting that they would warrant
the property conveyed. The deed recited that the other undivided
half of the land and tenements formerly owned by Major Kingsbury
belonged to the grantee as one of his heirs, and that the entire
property was subject to the dower rights of his widow.
On the 25th of March, 1862, the plaintiff's father executed an
instrument which, upon proof that it was wholly in his handwriting
and signed by him, was ordered by the Corporation Court of the City
of Alexandria, Virginia, to be recorded as his last will and
testament, and under an order of that court, passed May 10, 1870,
Ambrose E. Burnside qualified as his executor. On the 11th of July,
1870, that writing, with the proof thereof, was presented by
Burnside, as executor, to the County Court of Cook County,
Illinois, for record, and by the latter court it was ordered
"that the said will, and proof thereof, certified as aforesaid,
be recorded, and that the same be treated and considered as good
and available in law, in like manner as wills executed in this
state."
The writing referred to is as follows:
"Expecting soon to start upon a military expedition where death
may overtake me, I leave this as a record of my wishes respecting
the disposition of my property:"
"To my mother, Jane C. Kingsbury, I leave twenty thousand
dollars, or so much of my Chicago property as, upon fair appraisal,
may be valued at that amount."
"To my sister, Mary J. Buckner, I leave as much of the Chicago
property held in my name as shall amount to one-third of the
property in the City of Chicago, Illinois, held by my father,
Julius J. B. Kingsbury, deceased."
"To my cousin, John J. D. Kingsbury, I leave my property at
Waterbury, Conn. and in addition thereto five thousand dollars. I
trust he will expend it in completing his education."
"The remainder of my property, of every description I leave to
my devoted wife, Eva. I desire, moreover, that the
Page 134 U. S. 654
provisions of this will be so carried out that the yearly income
of my wife for her own personal support shall never be less than
two thousand dollars."
"As executors, I name Ambrose E. Burnside, of Rhode Island, and
Capt. John Taylor, Commissary Department, U.S. army."
"Signed at Fortress Monroe, Va., March 25, 1862."
"HENRY W. KINGSBURY,"
"
First Lieutenant 5th Regiment Artillery, U.S.
Army"
Lieutenant Kingsbury was killed at the battle of Antietam, on
the 17th of September, 1862.
On the 18th of July, 1870, the plaintiff herein, suing by
Corydon Beckwith, his next friend, instituted an action in the
Circuit Court of Cook County, sitting in equity, against Simon B.
Buckner, Mrs. Buckner, Ambrose E. Burnside, Jane C. Kingsbury, John
J. D. Kingsbury, Albert G. Lawrence, and Eva Lawrence. The
last-named defendant, as Eva Taylor, intermarried with Lieutenant
Kingsbury on the 4th of December, 1861. The only child of that
marriage was the plaintiff, who was born December 16, 1862, after
the death of his father. His mother subsequently, September 26,
1865, intermarried with Albert G. Lawrence.
It was alleged in that bill that the plaintiff's father died
intestate, seized in fee simple of the estate conveyed by the above
deed of May 15, 1861, and that upon his death it passed to the
plaintiff, subject only to the dower rights of his mother and
grandmother, and to certain encumbrances outstanding against the
property or some portions of it, and that by a decree rendered in a
suit instituted in 1868 by Jane C. Kingsbury in the same court
against Eva Lawrence, Albert G. Lawrence, himself, and one David J.
Lake (who assumed to act as the plaintiff's guardian), John
Woodbridge was appointed receiver of the entire income of the
premises, accruing and to accrue, with power to lease and manage
the property under the orders of the court, and with direction to
pay out of such income to his grandmother, Jane C. Kingsbury, and
to his mother, the sums to which they were respectively
entitled;
Page 134 U. S. 655
to provide for the maintenance and support of the plaintiff, and
to pay the interest upon certain mortgages upon the property, as
well as other expenses incident to its care and management.
Referring to the writing executed at Fortress Monroe, Virginia,
on the 25th of March, 1862, the bill alleged that it was delivered
to John McLean Taylor for safekeeping; that neither at the time of
his death, nor at any time thereafter, was his father an inhabitant
or resident of Virginia, nor did he have any property in that
state; that the Corporation Court of the City of Alexandria had no
jurisdiction to admit said will to probate or record; that neither
of the proceedings in that court nor of those in the County Court
of Cook County, Illinois, had Jane C. Kingsbury, Eva Lawrence, John
McLean Taylor, or himself any notice that the plaintiff's father
did not sign said paper in the presence of any attesting witness,
nor was the same attested by any witness in his presence; that it
was not executed with the requisite forms and solemnities to make
the same available for the granting and conveying of the property
therein mentioned according to the laws of Connecticut, the place
of his domicile, or of Maryland, where he died, or of the state in
which any of his property was situated; that it was not entitled to
probate in Illinois; that nevertheless Burnside, combining with the
other defendants in that suit, alleged and pretended that it was a
valid will for passing the title to property in Illinois, and said
Jane C. Kingsbury, Mary J. Buckner, John J. D. Kingsbury, and Eva
Lawrence, named in said pretended will as devisees or legatees,
claim under it, but without right, some interest in the said estate
of the plaintiff.
The prayer for relief was that said instrument be declared
invalid and of no legal force and effect as a last will and
testament; that the proceedings relating to it in the county court
of Cook County be reversed and set aside, or declared to be null
and void, as constituting a cloud upon plaintiff's title to the
real estate hereinbefore described; that his right and title by
inheritance to that estate as the posthumous son and only heir at
law of the said Henry W. Kingsbury, deceased, be
Page 134 U. S. 656
confirmed and established; that in the meantime Burnside,
Buckner and wife, and John J. D. Kingsbury be enjoined and
restrained from intermeddling with the said estate or with the
rents, issues, or profits thereof and from attempting in any way to
obstruct or interfere with Woodbridge in the performance of his
duties as receiver, and that on the final hearing of the cause the
injunction be made perpetual.
On the 31st of October, 1870, Buckner and wife filed their joint
and several answer to the bill. Answers were also filed by Jane C.
Kingsbury, Burnside, and John J. D. Kingsbury, which put in issue
all the material allegations of the bill.
Buckner and wife also filed, October 31, 1870, a cross-bill
against the plaintiff and their codefendants Eva Lawrence, Albert
G. Lawrence, and Jane C. Kingsbury, which, after setting out all
the material averments both of the bill and of their answer,
alleged that the real estate of which Major Kingsbury died seised
included all the lands described in the original bill; that while
the legal title to the strip along the east branch of the North
branch of the Chicago River, seventy feet in width for the full
length of the tract, was vested in Simon B. Buckner by deed of
January 22, 1855, he had no beneficial interest therein, and Major
Kingsbury was at his death its real owner; that the title to the
real estate of which the later died seised descended to and vested
in Mrs. Buckner and her brother, subject to the widow's right of
dower and to the encumbrances thereon; that the defendants were
married when Major Kingsbury died, and in 1858 had issue to their
marriage, a daughter, who was then living, by reason whereof
defendant Simon B. Buckner became vested with a life estate as
tenant by the curtesy initiate in the property vested in his wife,
and that at the death of her father, he (the defendant Buckner) had
the full control and management of the real estate left by him, and
retained such control until it was placed under the management of
Ambrose E. Burnside, sometime in December, 1860.
In respect to the deed of May 15, 1861, by Buckner and wife to
Lieutenant Kingsbury, the cross-bill showed that the value of the
property covered by it was $500,000, and, except an undivided half
of certain real estate of
Page 134 U. S. 657
small value in Connecticut, was the only property held by Mrs.
Buckner, her brother being the owner of the other undivided half of
the property described in that deed; that said deed was executed
without the knowledge of the grantee, who was ignorant of its
existence until several weeks after its execution, when he was
informed of the facts in the premises; that it was sent by Buckner
to his agent in Chicago with directions to file it for record,
which was done on the 17th of May, 1861, and that constituted the
only delivery of it ever made to the grantee, and that it was made
without any consideration, contract, arrangement, bargain, or
promise whatever, and was not acknowledged in accordance with the
laws of Illinois.
The cross-bill also alleged that the sole purpose of the deed of
1861 was to vest the title of the property thereby conveyed in the
grantee, as naked trustee, and not to make to him a gift; that it
was the intention of the cross-plaintiff Simon B. Buckner to waive
all claim to it, to allow his wife the sole use and enjoyment
thereof, and to place the control of it in her own family, but he
claimed all his legal and equitable rights in the premises, and
asked that the trust be enforced so as to enable him to carry his
intention into effect, to which end he would assent to any decree
conferring the sole control and benefit of the property upon his
wife, her heirs and assigns; that in the month of December, 1860,
the deceased and Simon B. Buckner, for themselves, Jane C.
Kingsbury, and Mrs. Buckner, made an arrangement with Ambrose E.
Burnside, then residing in Chicago, to take charge of and manage
the property for all the parties, and that Lieutenant Kingsbury
never exercised any acts of ownership over or asserted any interest
in the property inconsistent with said trust, and if he had lived
would have recognized the equitable and just claim of the
cross-plaintiffs, and reconveyed the same upon request.
The cross-bill then referred to the will of March 25, 1862, and
alleged that the only property in Chicago vested in the testator at
that date was the real estate left by his father, which descended
to him and his sister, Mrs. Buckner, and that the only conveyance
ever made to him of property in
Page 134 U. S. 658
that city, and the only property there held in his name for the
use of any person was that described in the deed of Buckner and
wife of May 15, 1861; that prior to the making of that will, the
Chicago property had been used solely to receive the rents and
profits, the testator, his mother and sister, being treated as if
each had been entitled to one-third; that the testator, who was
only twenty-three years of age, recently from West Point, without
business experience, and unacquainted with the rules of law, and
acting under the impression that Mrs. Buckner was the owner of only
one-third, made the provision in his will for Mrs. Buckner, with
the purpose to declare said trust, and to restore to the control of
his sister all the property described in the above deed; that
therefore the will is a sufficient declaration in writing of the
trust to take it out of the statute of frauds, if it was a trust
within its provision, and that said will was legally admitted to
probate by the laws of Virginia, by a court having jurisdiction in
such matters, and was certified and admitted to record in Illinois
in conformity with its laws.
It further alleged:
"And your orators further show that the said Henry W. Kingsbury,
on the 23d day of October, 1861, wrote with his own hand a letter
to his mother, Jane C. Kingsbury, and signed the same by his
signature, 'Henry,' in which, among other things, he wrote:"
" I spent all the morning with Burnside yesterday. He stated, as
I told you, that Simon had made over all the Chicago property that
was held in his name to me. A new power of attorney is therefore
necessary from you and myself. We made one out. I signed it.
Burnside will send it to you."
"And they aver that the reference in said letter by the words
'as I told you' was to a conversation between the said Henry W.
Kingsbury and his mother, had in their last personal interview
before the date of said letter, in which the said Henry W.
Kingsbury expressly admitted that he held all the property of your
orator, Nary K. Buckner, inherited from her father, in trust for a
short time, and said that he would restore it all to her whenever
she desired. And your orators show that the only delivery of said
deed bearing date Nay 15, 1861, ever made was
Page 134 U. S. 659
the filing of the same for record by the said Simon B. Buckner
as hereinbefore set forth."
The relief asked in the cross-bill was that the deed of May 15,
1861, be declared null and void as to Mrs. Buckner; that it be
declared a deed of trust to the father of the plaintiff for the use
and benefit of the grantors or one of them; that the plaintiff be
adjudged to hold the property described in it as a trustee in like
manner and required to reconvey to the cross plaintiffs, or to one
of them, as may be determined by the court; that an account be
taken of the receipts and disbursements from and about the property
by the defendants; that the dower rights of Jane C. Kingsbury and
Eva Lawrence be ascertained and fixed, and partition made of said
real estate, and the property owned by the cross-plaintiffs
restored to them as they might be severally entitled thereto, and
that they have such other and further relief as was just and
equitable.
By an order made November 25, 1870, Corydon Beckwith -- no
service of process having been made upon the infant -- was
appointed guardian
ad litem for Henry W. Kingsbury on the
cross-bill. The infant, by him, filed an answer, which distinctly
put in issue the material allegations of the cross-bill and
restated substantially all that was set out in the original bill.
Answers to the cross-bill were also filed by Lawrence and wife. To
these answers replications were filed by Buckner and wife.
On the 31st of December, 1870, the cause being heard, it was
adjudged that both the original and cross-suits be dismissed
without prejudice. It was further ordered that the decree be
entered as of the 24th of December, 1870. At the same time, there
was filed in the cause a certificate of all the evidence used on
the final hearing in the circuit court.
Each party prosecuted an appeal. The case was heard in the
supreme court of the state at its January term, 1871, and on the
5th of October, 1871, that court reversed the decree of the circuit
court, and remanded the cause, with special directions as to the
decree to be entered and for further proceedings.
Kingsbury v.
Burnside, 58 Ill. 310, 337.
Page 134 U. S. 660
The following extract from the opinion of the court shows the
grounds, as well as the extent, of the reversal:
"The late Henry W. Kingsbury was, as this case shows, not only a
trustee of the property for his sister, but he was an honest
trustee. By the last act of his life in this respect he designed to
and did admit the existence of the trust, and endeavored to execute
it. Immediately after his death, his widow, one of the defendants,
in a letter to the mother of her deceased husband, recognized and
admitted the trust, so far as she was concerned, in the most
express terms, and seemed distressed at the suggestion of any
obstacle to its immediate execution. Though her relations in life
and to the
cestui que trust became afterwards changed by
another marriage, yet it is incredible that if she has been
cognizant of the efforts which have been made to conceal the most
important item of evidence of her former husband's relation to this
vast property, and to wrest it from its proper channel, she can
view them otherwise than with feelings of sorrow and regret. Her
conduct has been the subject of severe criticism by counsel, but we
are inclined to believe that she, like the unconscious infant whose
name appears as plaintiff in the original bill, is but the
involuntary instrument in the hands of designing men who stand in
no such relation to the memory of the deceased trustee as does Eva
Lawrence."
"The trust being sufficiently manifested and proved by writings
signed by the party who was, by law, enabled to declare it, it must
be executed."
"This conclusion renders unnecessary any discussion of the
question, made by appellants in the cross-bill, as to the
sufficiency of the acknowledgment of the deed by Mary J. Buckner,
or of the question made by appellant in the original bill as to the
execution and probate of the will, because if properly executed and
admitted to probate, the will would be governed by the laws of this
state, where the property is situated, and the posthumous birth of
the infant Henry W. Kingsbury would, by those laws, operate as an
abatement of all devises of property so situated. Gross' Statutes,
p. 800, sec. 16, Wills. Besides, the testator was incapable of
divesting the property
Page 134 U. S. 661
held in his name for the use of Mary J. Buckner by any devise he
could make."
"The decree of the court below dismissing both bills without
prejudice must therefore be reversed, and the causes remanded with
directions to that court to dismiss the original bill absolutely
and to grant the relief prayed in the cross-bill by a decree
establishing the equitable title in Mary J. Buckner to her proper
share of the real estate described in the deed of May 15, 1861,
declaring the trust, and requiring the proper conveyance of the
legal title to her, divested of any life estate in her husband, (he
having renounced the same), and of all right of dower in Eva
Lawrence; that an account be taken between said Mary J. Buckner and
all other partes interested in the estate of Julius J. B.
Kingsbury, deceased, according to the rules and practice of the
court of chancery in such cases, and it be decreed
accordingly."
The cause was redocketed in the Circuit Court of Cook County,
and on the 13th of November, 1871, in pursuance of the special
directions of the Supreme Court of Illinois in its mandate and
opinion, the original bill was dismissed for want of equity. It was
also ordered and adjudged pursuant to such mandate and opinion that
the master in chancery make, execute, acknowledge, and deliver a
deed conveying, for Henry W. Kingsbury, the infant defendant to the
cross-bill, to Mrs. Buckner, the real estate and premises conveyed
by the deed of May 15, 1861, divested of any life estate in her
husband.
It was further ordered and adjudged that partition be made
between Henry W. Kingsbury and Mrs. Buckner, as tenants in common,
of the real estate inherited from Major Kingsbury, one undivided
half of which was owned by each, the share of the lots or lands
assigned to the former to be subject to the dower rights of Jane C.
Kingsbury and Eva Lawrence and the share assigned to Mrs. Buckner
to be subject to the dower rights of June C. Kingsbury. It was
further adjudged that Eva Lawrence be enjoined from asserting any
claim for dower in the property assigned to Mrs. Buckner. The
accounting between the parties to the cross-bill, and the costs,
and the question in regard to the dower of Mrs. Kingsbury were
reserved for the further order of the court.
Page 134 U. S. 662
The commissioners appointed to make partition made their report
on the 22d of January, 1872, and the same was confirmed February
12, 1872, except as to that part of the premises known as the
"Spencer Tract," in respect to which objections had been filed in
behalf of Kingsbury by his guardian
ad litem. Under writs
of assistance issued in favor of Mrs. Buckner on the 29th of
January, 1872, she was placed in possession of the property
assigned and confirmed to her. On the 26th of March, 1872, the
court sustained a motion for leave to the receiver to pay Mrs.
Buckner one-half of all moneys collected by him on policies of
insurance. From that order the infant, by his guardian
ad
litem, prayed and was allowed an appeal to the supreme court
of the state. It is stated that the exceptions filed for the infant
to the reports were overruled on the second of August, 1872, and a
decree entered confirming those parts of them to which exception
had been taken and declaring the parties vested with the title to
the lands respectively set off and allotted to them, and from that
decree the infant, by his guardian
ad litem, prayed and
was allowed an appeal.
The case was again carried to the supreme court of the state
upon the infant's appeal, by his then guardian
ad litem (a
new one having been appointed), who assigned numerous errors in
that court, among which were the following: that the court erred in
rendering the decree of November 13, 1871, that it was rendered
without proof against the infant and was contrary to law, and that
it was not in accordance with the mandate of the court, and was
without jurisdiction in the Cook Circuit Court. The remaining
assignments related principally to alleged errors in reference to
the partition, the report of the commissioners, the distribution of
insurance money, and the apportionment of the encumbrances. Upon
the hearing of this last appeal, the solicitor representing the
infant and his guardian
ad litem urged numerous objections
to the proceedings in the circuit court, among which were these:
that the circuit court had no jurisdiction over the infant to
render the decree of November 13, 1871, on the cross-bill of
Buckner and wife, and that such decree was rendered without
Page 134 U. S. 663
sufficient proof, was collusively obtained against the infant,
and was manifestly unjust. In connection with these general
objections, the solicitor of the infant presented many
specifications of fraud alleged to have been practiced by the
former guardian
ad litem of the infant in and about the
proceedings culminating in the decree of November 13, 1871. Most of
these specifications are again presented in the present suit, and
will be hereafter examined.
At the September term, 1872, of the Supreme Court of Illinois,
the last decree was reversed, mainly upon the ground that Mrs.
Buckner had no interest in what was called the "Spencer Tract."
Kingsbury v. Buckner, 70 Ill. 514. In reference to the
attempt made upon that appeal to reopen the questions decided on
the first appeal, the court said:
"A labored argument has been made to prove the error of the
former decision of the court, and it is charged that fraud and
collusion were practiced, and incompetent testimony adduced, to
obtain it. If this were true, we cannot determine questions so
grave upon
ex parte affidavits. If there have been fraud
and collusion, the proper remedy would be in chancery, and then the
parties assailed could have an opportunity of making a defense; or,
if the decree is directed by the court of final resort, by an
application for a rehearing."
"Upon the former hearing, after full argument, this Court
decided that Henry W. Kingsbury held the property conveyed by the
deed from Mrs. Buckner and husband to him, as trustee, that the
trust had been manifested by a writing, and that she had an
equitable title to a share in the estate. The cause was remanded to
ascertain her share, and not to determine the trust. The latter had
been established by the declaration of this Court. This appeal is
prosecuted from the decree making partition, and can bring before
us no other question except questions incident to the order for
partition. We cannot examine as to the merits of the original case,
but only as to proceedings subsequent sequent to the decision at
the former hearing. . . . The trust relation between the parties
was established by the former decision, and the court has not the
power to reverse it. "
Page 134 U. S. 664
A rehearing was granted, and at the September term, 1873, of the
supreme court of the state, the following opinion was
delivered:
"
Per Curiam. A rehearing was ordered in this cause upon
the present appeal not for the purpose of reconsidering the case
upon the merits or to change or in any substantial sense to modify
our former decision, but to render the opinion of the court more
explicit and prevent misconception of its meaning. This seems
demanded by the peculiar state of the record, which was
inadvertently overlooked, and the language employed in the opinion,
to which our attention has been called by the application for a
rehearing."
"When the cause was before us upon a former occasion, the
principal questions involved were definitely settled. The decree of
the court below dismissing both the original and cross-bills was
reversed and the cause remanded with directions to grant the relief
prayed by Mrs. Buckner's cross-bill. 58 Ill. 310. In pursuance of
those directions, a decree was entered in the circuit court,
November 13, 1871. This decree established the principal rights of
the parties, and the court proceeded to carry them into effect,
which involved the necessity of entering three subsequent decretal
orders, and on August 2, 1872, another and final decree. This
decree disposed of a controversy arising between the parties upon
proceedings for partition, involving a claim by Mrs. Buckner to a
share in what is called the 'Spencer Tract' as a part of her
father's estate, and by that decree her claim was allowed, from
which an appeal was taken on behalf of the infant, Henry W.
Kingsbury, to this court. No appeal was taken from the decree of
November 13, 1871, but appeals were taken from some of the decretal
orders intervening that and the final decree of August 2,
1872."
"Upon these appeals, the whole record was brought to this Court
and errors assigned questioning the propriety of the decree of
November 13, 1871, entered in conformity with the directions of
this court, some of the intervening orders, and the final decree of
August 2, 1872. The questions raised and attempted to be raised
were all carefully considered, and the
Page 134 U. S. 665
conclusion arrived at was that no error could be assigned upon
the first decree, entered in pursuance of the directions of this
court; that the points made upon the intervening orders were not
well taken; but that the decree of August 2, 1872, was erroneous,
and ought to be reversed, for the reasons given in the opinion.
These views, however, are not clearly announced in the former
opinion, and it follows also that the directions contained in the
opinion which have no relation to the matters involved in the
decree of August 2, 1872, are wholly inappropriate, and may be
considered as withdrawn from the opinion."
"The judgment which we intended to enter was that the several
decrees and decretal orders antecedent to the final decree of
August 2, 1872, and upon which error was assigned, be affirmed, but
that the decree of August 2, 1872, concerning Mrs. Buckner's claim
in the Spencer tract be reversed, and the cause remanded for
further proceedings in conformity with the former opinion, as
herein explained and modified, and that each party pay half of the
costs in this court."
It should be here stated that the present transcript does not
contain the decree of August 2, 1872.
On the 7th of March, 1877, the death of Mrs. Buckner was
suggested in the circuit court, and her daughter, Lily Buckner, was
substituted in her place as a co-complainant in the cross-bill, and
on the same day a decree was rendered in conformity with the
opinion and judgment of the supreme court of the state annulling so
much of the deed executed by the master to Mrs. Buckner as conveyed
to her one undivided half of the Spencer tract, and directing a
conveyance of that tract to the infant, Henry W. Kingsbury.
The present suit was brought in the Circuit Court of Cook
County, Illinois, on the 11th day of August, 1873, for Henry W.
Kingsbury, by Eva Lawrence, his next friend, against Simon B.
Buckner, Mrs. Buckner, Jane C. Kingsbury, John J. D. Kingsbury,
Ambrose E. Burnside, and Corydon Beckwith. As already stated, its
object was to obtain a decree declaring the proceedings above
referred to to be erroneous, fraudulent, and void as to him, and
restoring him to the possession and ownership of
Page 134 U. S. 666
the property embraced by the deed executed May 15, 1861, by
Buckner and wife to his father. The bill is lengthy, setting forth
substantially all the above steps taken in the suit in the state
courts and going very much into detail in respect to the various
grounds upon which he bases his claim to relief.
Shortly after this bill was filed, Beckwith, Buckner and wife,
and Burnside filed general demurrers, but no further steps were
taken in the cause until April 16, 1877, when it was dismissed for
want of prosecution. The order of dismissal was, however, set
aside, and Buckner and Burnside, having obtained leave to withdraw
their demurrers, filed May 17, 1877 (Mrs. Buckner having died), a
plea in bar, based upon the bill, cross-bill, pleadings,
proceedings, and decrees in the former case. They also filed a
joint and several answer. The cause was removed upon the petition
of the plaintiff to the Circuit Court of the United States for the
Northern District of Illinois, where, upon final hearing, and after
replications were filed in behalf of the infant to both the plea an
the answer of Buckner and wife, the suit was ordered to be abated
as to Mrs. Buckner, the demurrers of Beckwith and Mrs. Kingsbury
were sustained, and the bill dismissed for want of equity. This is
the decree which has been brought here for review.
Page 134 U. S. 669
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first proposition advanced by appellant is that a decree
against a minor is subject to attack by an original bill upon the
ground of error apparent upon the record, want of jurisdiction, or
fraud. Such is the rule in Illinois, in one of whose courts this
suit originated, and by one of whose courts the decree sought to be
set aside was rendered.
Loyd v. Malone, 23 Ill. 43;
Kuchenbeiser v. Beckert, 41 Ill. 172, 177;
Hess v.
Voss, 52 Ill. 472, 478;
Kingsbury v. Buckner, 70 Ill.
514, 516;
Lloyd v. Kirkwood, 112 Ill. 329, 337. In the
case last cited, the Supreme Court of Illinois, after observing
that there was considerable diversity of opinion as to whether a
decree could be assailed by original bill for error merely,
said:
"In many of the states, however, including our own, a decree
against an infant, like that against an adult, is absolute in the
first instance, subject to the right to attack it by original bill,
for either fraud or error merely; but until so attacked, and set
aside or reversed, on error or appeal, it is
Page 134 U. S. 670
binding to the same extent as any other decree or judgment. This
right to attack a decree by original bill may be exercised at any
time before the infant attains his majority, or at any time
afterwards within the period in which he may, under the statute,
prosecute a writ of error for the reversal of such decree."
Although the cases in Illinois concede the right, by original
bill, to impeach a decree for fraud, and although this Court has
recognized that right as existing even after the decree has been
affirmed by an appellate court,
Pacific Railroad Co. v.
Ketchum, 101 U. S. 289,
101 U. S. 296;
Pacific Railroad of Missouri v. Missouri Pac. Railway,
111 U. S. 505,
111 U. S. 519,
none of the cases cited from either court sustains the proposition
that a party, whether an infant of adult, against whom a decree is
rendered by direction of the appellate court, can impeach it by
bill filed in the court of first instance for errors apparent on
the record and which do not involve the jurisdiction of either
court.
The decree which the appellant seeks to have set aside was
rendered in conformity with the mandate of the Supreme Court of
Illinois requiring that the original bill in the first suit be
dismissed, and that a decree be entered upon the cross-bill
adjudging the property in question to belong to Mrs. Buckner, and
not to him. It is the one which the supreme court of the state
held, in
Kingsbury v. Buckner, 70 Ill. 516, 517, was
beyond even its own control when questioned upon a second appeal in
the same case. And this is in accordance with the settled doctrines
of this Court. In
Roberts v.
Cooper, 20 How. 467,
61 U. S. 481,
cited in 70 Ill. 571, this Court said:
"It has been settled by the decisions of this Court that after a
case has been brought here and decided, and a mandate issued to the
court below, if a second writ of error is sued out, it brings up
for revision nothing but the proceedings subsequent to the mandate.
None of the questions which were before the court on the first writ
of error can be reheard or examined upon the second. To allow a
second writ of error or appeal to a court of last resort on the
same questions which were open to dispute on the first would lead
to endless litigation."
So,
in Durant v. Essex Co., 101 U.
S. 555,
101 U. S. 556,
it is said:
Page 134 U. S. 671
"On a mandate from this Court affirming a decree, the circuit
court can only record our order, and proceed with the execution of
its own decree as affirmed. It has no power to rescind or modify
what we have established. . . . The result of the appeal to us was
an affirmance of what had been done below. After the appeal had
been taken, the power of the court below over its own decree was
gone. All it could do after that was to obey our mandate when it
was down. We affirmed its decree and ordered execution. We might
have ordered a modification so as to declare that the dismissal
should be without prejudice. We did not do so. The circuit court
had no power after that to do what we might have done and did not
do."
See also Browder v.
McArthur, 7 Wheat. 58;
Tyler v.
Magwire, 17 Wall. 253,
84 U. S. 284;
The Lady Pike, 96 U. S. 461,
96 U. S. 462;
Stewart v. Salamon, 97 U. S. 361;
Humphrey v. Baker, 103 U. S. 736,
103 U. S. 737.
It is obvious that the same principle must apply where a party,
instead of prosecuting a second appeal, attempts by a bill of
review, or by a new bill in the nature of a bill of review, to
reach errors apparent upon the face of the record. In
Southard v.
Russell, 16 How. 547,
57 U. S. 570,
cited with approval in
Kingsbury v. Buckner, 70 Ill. 514,
516, it was said:
"As already stated, the decree sought to be set aside by this
bill of review in the court below was entered in pursuance of the
mandate of this court on an appeal in the original suit. It is
therefore the decree of this court, and not that primarily entered
by the court below, that is sought to be interfered with. The
better opinion is that a bill of review will not lie at all for
errors of law alleged on the face of the decree after the judgment
of the appellate court. These may be corrected by a direct
application to that court, which would amend, as matter of course,
any error of the kind that might have occurred in entering the
decree. Nor will a bill of review lie in the case of newly
discovered evidence after the publication or decree below, where a
decision has taken place on an appeal, unless the right is reserved
in the decree of the appellate court or permission be given on an
application to that court directly for the purpose. This appears to
be the practice of the Court of Chancery and House
Page 134 U. S. 672
of Lords in England, and we think it founded in principles
essential to the proper administration of the law and to a
reasonable termination of litigation between parties in chancery
suits."
Among the cases cited in
Southard v. Russell was that
of
Brewer v. Bowman, 3 J. J. Marsh. 492, in which the
court, after observing that the remedy by bill of review for errors
apparent upon the record was analogous to that of a writ of error,
said:
"Hence, an affirmance in this court upon writ of error would bar
a bill of review for any error which might exist in the record, but
which was not assigned nor inquired into by this court. It follows
that a reversal by this court upon a writ of error (and we perceive
no reason why a reversal upon an appeal should not have the same
effect), with directions how to render the decree, and the
rendition of the decree by the circuit court in pursuance of the
mandates of this, would equally bar an attempt by bill of review to
inquire into errors which be in the record, but which were not
noticed by this court. . . . The decree rendered by the circuit
court conformed to the opinion of this court. All attempts
therefore to reach any error apparent upon the face of the record
prior to the decision by this court come to late."
See also United States v. Knight's
Administrator, 1 Black 488,
66 U. S. 489;
Kimberly v. Arms, 40 F. 548; Story's Eq.Pl. § 408;
Cleveland v. Quilty, 128 Mass. 579;
McCall v.
Graham, 1 Hen. & Munf. 12, 13;
Campbell v. Price,
3 Munf. 228;
Campbell v. Campbell, 22 Grattan 674;
Jewett v. Dringer, 31 N.J.Eq 586, 590;
Rice v.
Carey, 4 Ga. 558, 570;
Watkins v. Lawton, 69 Ga. 672,
675;
Ryerson v. Eldred, 18 Mich. 490; 2 Barb.Ch.Pr. 2d
rev.ed. 92.
It has been suggested that the rule is different in the case of
infants, and that the right of the infant Kingsbury to file an
original bill to set aside the decree of November 13, 1871, for
errors apparent on the record, was not affected by the fact that
such decree was entered pursuant to the mandate of the Supreme
Court of Illinois. In this view we do not concur. By the practice
in chancery in Illinois, a decree against an infant is absolute in
the first instance, and no day is given to
Page 134 U. S. 673
show cause after he becomes of age, and instead thereof, the
infant Kingsbury had five years after reaching full age within
which to prosecute an appeal from the decree of November 31, 1870,
dismissing his bill in the original suit. Rev.Stat.Ill. 1845, p.
421, § 53; Rev.Stat. 1874, p. 785, § 86;
Enos v.
Capps, 15 Ill. 277;
Barnes v. Hazleton, 50 Ill. 429,
432;
Wadhams v. Gay, 73 Ill. 424;
Hess v. Voss,
52 Ill. 472;
Lloyd v. Kirkwood, 112 Ill. 337. But action
in his behalf need not have been deferred for so long a time. It
was competent for him, during his minority, by his
prochein
ami, to carry that decree to the highest court of the state
for reexamination, or file in the court rendering it an original
bill to have it set aside for error apparent on the record. In
McClay v. Norris, 4 Gilman, 370, 383, the court, after
observing that, whatever may have been the practice elsewhere, the
right, of an infant to prosecute a writ of error was not to be
doubted in Illinois, said:
"If an infant sues out a writ of error, and a decree in this
court is passed against him, such decree would be conclusive as
well against him as it would have been had he attained full age,
both under the provisions of the statute before recited, and upon
the principle that he is a plaintiff in the writ of error, and, as
such, concluded by the judgment or decree."
And in
Kuchenbeiser v. Beckert, 41 Ill. 172, 177, it
was said:
"It was urged that the trial was had, and the decree executed
and carried in to effect, so long since that it should not now be
disturbed. This would be unquestionably true had the parties all
been adults when the decree was rendered or had the period elapsed
which bars a writ of error after the minors had become of age. But
under our practice, a minor defendant to a bill is entitled to his
day in court, whether it is expressly reserved by the decree or
not, and he may at any time during his minority, by his next friend
or guardian, file an original bill to impeach a decree against
him."
Loyd v. Malone, 23 Ill. 43;
Lloyd v. Kirkwood, ubi
supra; Richmond v. Tayleur, 1 P.Wms. 734; Chambers on the
Property of Infants 798. The infant, by his
prochein ami,
having prosecuted an appeal to the Supreme Court of Illinois from
the original decree rendered
Page 134 U. S. 674
in the suit brought by him, and having appeared by guardian
ad litem to the appeal of Buckner and wife, is as much
bound by the action of that court in respect to mere errors of law,
not involving jurisdiction, as if he had been an adult when the
appeal was taken. In
Gregory v. Molesworth, 3 Atk. 626,
Lord Hardwicke said that
"it is right to follow the rule of law, where it is held an
infant is as much bound by a judgment in his own action as if of
full age, and this is general unless gross laches or fraud and
collusion appear in the
prochein ami; then the infant
might open it by a new bill."
So in
Lord Brook v. Lord Hertford, 2 P.Wms. 518, 519:
"An infant, when plaintiff, is as much bound and as little
privileged as one of full age."
See also Brown v.
Armistead, 6 Randolph 594;
Jameson v. Moseley, 4
T.B.Mon. 414;
Hanna v. Spott's Heirs, 5 B.Mon. 362.
It results that no inquiry can be made in this case in respect
to errors of law apparent on the record that do not involve
jurisdiction of the original suit brought by the plaintiff when an
infant.
But it is contended that the record shows upon its face a want
of jurisdiction of the person of the infant and of the subject
matter at the time the decree of November 13, 1871, was rendered.
In
McDermaid v. Russell, 41 Ill. 489, 491, it was decided
that when notice by publication against infant nonresident
defendants in chancery was nugatory and void, the appointment of
guardians
ad litem for them based upon such publication
"was also void, for they were not in court, amenable to any of its
orders." To the same effect is
Campbell v. Campbell, 63
Ill. 463, in which the court declared the forty-seventh section of
the old chancery statute of Illinois (Rev.Stats.Illinois 1845, c.
21), so far as it authorized a decree against infant defendants
without service of process on them, to be unconstitutional. In
Chambers v. Jones, 72 Ill. 275, 278, where the appearance
of an infant defendant was entered by a guardian
ad litem,
appointed by the court to defend for her, it was said:
"This did not give the court jurisdiction, and hence the whole
proceedings were
coram non judice. It is very clear no
title passed to Jones by his purchase under the
Page 134 U. S. 675
decree. The decree and sale were absolutely null and void, and
could be attacked directly or collaterally by the heirs owning the
fee. The court had no jurisdiction to pronounce a decree that would
affect their interests, having no jurisdiction of their persons by
service of process or otherwise."
Upon the authority of these cases, it is insisted that, as there
was no service of process, actual or constructive, upon the infant
Kingsbury in the cross-suit of Buckner and wife, he was not in
court in respect to the matters of that cross-suit, and
consequently the decree against him on the cross-bill was void, and
that if he could not be brought into the court of original
jurisdiction on the cross-bill merely by the appearance of his
guardian
ad litem, he was not before the Supreme Court of
Illinois upon the appeal prosecuted in his name. The defendants
insist, upon the authority of cases in this Court, that no question
can be raised as to the jurisdiction of the Circuit Court of Cook
County to pass the decree entered in conformity with the mandate of
the supreme court of the state.
Skillern's
Executors v. May's Executors, 6 Cranch 267;
McCormick v.
Sullivant, 10 Wheat. 192;
Ex Parte
Story, 12 Pet. 339;
Bridge Co.
v. Stewart, 3 How. 413;
Des Moines Nav. Co. v.
Homestead Co., 123 U. S. 552,
123 U. S. 557.
But those were not cases in which the party against whom a decree
was rendered was not before the court. They do not sustain the
proposition that a decree, entered in pursuance of the mandate of
an appellate court, but which is void by reason of the party's not
being before that court or before the court of original
jurisdiction, may not be attacked by an original bill. It is
therefore necessary to inquire whether the Circuit Court of Cook
County had jurisdiction of the infant Kingsbury upon the cross-bill
filed by Buckner and wife.
In respect to the plaintiff's contention that he could not have
been brought into court as a defendant in the cross-suit except by
summons or publication upon the cross-bill, it may be said that in
Ballance v. Underhill, 3 Scammon 453, 461, decided in
1842, it was held that the defendant in a cross-suit must be
brought into court in the same manner as he would be in any other
case. But in
Fleece v. Russell, 13 Ill.
Page 134 U. S. 676
32, the court, referring to the provisions of the Revised
Statutes of 1845, c. 21, §§ 24 to 30, inclusive, relating
to cross-bills, said:
"Under these provisions of the statute, which have been passed
since the decision in the case of
Ballance v. Underhill, 3
Scammon 453, no process is necessary to bring in the parties to the
original bill, but the cross-bill is to be regarded as an adjunct
or part of the original suit, and the whole together as
constituting but one case."
The same principle was announced in
Reed v. Kemp, 16
Ill. 445, 448. We are not referred to any case holding this
principle to be inapplicable in the case of an infant complainant
in an original suit who is a defendant in a cross-bill. He is in
court by his original bill, and process is not required upon a
cross-bill against him in the same suit.
See also 1 Starr
& Curtis, Anno.Stat. 407, 408, §§ 30 to 35,
inclusive; Pub.Laws Illinois 1871-72, p. 329.
But it is said that the subject matter of the original bill was
simply the claim alleged to be asserted in hostility to the
plaintiff, under the will of his father, and that Mrs. Buckner's
claim that the property conveyed by the deed of May 15, 1861, was
held in trust for her, could not properly be made the subject of a
cross-suit; that the jurisdiction, if any, acquired over the infant
by the filing of the original bill did not extend to the new matter
thus introduced by the cross-bill, and that therefore he was not
before the court as to such new matter, by the appearance in his
behalf of a guardian
ad litem, without previous service of
process, actual or constructive. This view cannot be sustained, for
it is clear that the matter in respect to which the plaintiffs in
the cross-bill sought relief was embraced by the original bill. The
original bill asserted ownership by appellant, subject to certain
encumbrances and rights of dower, of the entire real estate
standing in his father's name at the time of his death, including
that which Buckner and wife conveyed by the deed of May 15, 1861.
It made distinct reference to that deed as the source of his
father's title to the property here in question, and therefore as
the foundation of his own claim, and the relief asked was not
restricted to a decree simply declaring the alleged
Page 134 U. S. 677
will of 1862 to be invalid; but a decree was sought by which his
right and title to the property claimed to be held in trust for
Mrs. Buckner by her brother should be confirmed and established,
and all the defendants, including her, perpetually enjoined from
intermeddling with it or with its rents, issues, or profits. The
subject matter of the original bill, so far as she was concerned,
was the title and ownership of the property conveyed by the deed of
May 15, 1861. The plaintiff claimed title under that deed, and by
inheritance from his father. Mrs. Buckner claimed it under the same
deed, but she averred that it was a trust deed. The allegations of
the cross-bill related to that property, and, in answer to the
plaintiff's demand that his title to it be confirmed, she demanded
that the trust created by the deed of 1861 be declared, and her
ownership established as against the plaintiff. It is true that the
cross-bill alleged additional facts, but its subject matter was not
the less, for that reason, germane to that of the original bill.
Story's Eq.Pl. §§ 389, 392; 2 Daniell's Ch.Pr. 1548;
Underhill v. Van Cortlandt, 2 Johns.Ch. 339, 355;
Hurd
v. Case, 32 Ill. 45, 49.
In
Jones v. Smith, 14 Ill. 229, the relief sought was a
decree establishing the plaintiff's title to certain real estate
purchased at an execution sale under various judgments, and which
had been conveyed by the judgment debtor to his daughter. The
debtor defended upon the ground that the judgments were
fraudulently obtained, and that of such fraud the purchaser was
cognizant when they were rendered. He filed a cross-bill to have
the sales set aside and satisfaction of the judgments entered. Upon
the question whether a cross-bill was proper in such a case, the
court said:
"A cross-bill is proper whenever the defendants, or any or
either of them, have equities arising out of the subject matter of
the original suit which entitle them to affirmative relief which
they cannot obtain in that suit. No fitter case could be imagined
for a cross-bill than the one which is presented by these
pleadings. . . . No doubt, upon his answer, he [the defendant] was
at liberty to prove the facts averred; but this would only defeat
Smith's [the plaintiff's] claim to relief, while the same
Page 134 U. S. 678
facts, if established upon a cross-bill, would entitle him to
have satisfaction of the judgments actually entered. Without this,
he might be put to the necessity of proving them repeatedly."
In
Lloyd v. Kirkwood, 112 Ill. 329, 336, in which the
relief sought was a decree of partition, it was said that if the
defendant, as matter of law, was entitled to have the decree upon
which the plaintiffs based their right to partition set aside, on a
bill for that purpose, such right was an appropriate matter for a
cross-bill to an original bill filed to enforce such partition. So,
in the case before us, while Mrs. Buckner might perhaps have
defeated the plaintiff's suit by proving under her answer the facts
set out in the cross-bill, it was competent for her in the same
suit to obtain such affirmative relief as was appropriate under
proof that her brother did not become the absolute owner of the
property by the conveyance of 1861, but was invested with the title
in trust for her. It results that it was not essential to the
jurisdiction of the Circuit Court of Cook County that there should
have been service of process, actual or constructive, upon the
cross-bill of Buckner and wife against the infant.
The jurisdiction of that court to entertain the original suit
instituted July 18, 1870, is questioned upon the ground that it was
commenced without authority of the infant, and because no bond for
costs was filed by the guardian
ad litem. This position is
supposed to be justified by the following provisions of the Revised
Statutes of Illinois: "Suits in chancery may be commenced and
prosecuted by infants, either by guardian or next friend."
Rev.Stats.Illinois 1845, c. 21, § 4, Title "Chancery."
"Minors may bring suits, in all cases whatever, by any person
that they may select as their next friend, and the person so
selected shall file bond with the clerk of the circuit court or
justice of the peace before whom the suit may be brought
acknowledging himself bound for all the costs that may accrue and
legally devolve upon such minor; and, after bond shall have been so
filed, said suit shall progress to final judgment and execution as
in other cases."
Rev.Stats.Illinois 1845, c. 47, § 13, Title "Guardian and
Ward." Surely these provisions are not to be interpreted to mean
that no suit in the name of an
Page 134 U. S. 679
infant by next friend can be entertained unless such next friend
is selected by the infant. Such a construction is inadmissible. It
would prevent a suit's being brought by next friend where the
infant was so young as to be incapable of making a selection of a
person to represent him. The section first above quoted is only a
recognition of the general rule that "the court, in favor of
infants, will permit any person to institute suits in their
behalf," exercising, however,
"a very careful discretion, on the one hand, in order to
facilitate the proper exercise of the right which is given to all
persons to file a bill on behalf of infants, and, on the other, to
prevent any abuse of that right and any wanton expense to the
prejudice of infants."
1 Daniell's Ch.Pr. 69, 71;
Starten v. Bartholomew, 6
Beavan 144; Macpherson on the Law of Infants 364; Chambers on the
Property of Infants 757. In any view, the right to bring the suit
does not depend upon the execution of a bond for costs, although,
according to the letter of the statute, the next friend may be
required to give such a bond before the suit proceeds to final
judgment and execution. It is also said that there is nothing to
show that Beckwith had any authority to sue as next friend except
that in his affidavit to the original bill he states that he is the
next friend of the infant. It was not necessary to the jurisdiction
of the court that he should exhibit with the bill evidence of
special authority to bring it as next friend. It was in the power
of the court, under whose eye he acted at any time to inquire into
his fitness to represent the interests of the infant, to remove him
if he was a mere intermeddler and to allow someone else to be
substituted in his place. All the circumstances show that his
institution of the original suit as next friend was with the
knowledge and assent of the infant's mother and guardian. It is
impossible to believe that he moved in the matter without the
approval of those nearest to the infant. There is no ground to say
that he proceeded without authority.
There is still another question of jurisdiction to be
considered. By the Constitution of Illinois,
"Appeals and writs of error may be taken to the Supreme Court
held in the Grand
Page 134 U. S. 680
Division in which the case is decided, or, by consent of the
parties, to any other Grand Division."
Illinois Constitution of 1870, Art. 6, §§ 2, 5, 8. The
County of Cook is in the northern Grand Division, and unless the
parties consent, cases from that county which may be taken to the
supreme court must go to the court sitting in that Grand Division.
The record discloses the fact that upon the entry in the Circuit
Court of Cook County of the decree of December, 1870, dismissing
both the original and cross-bills without prejudice, an order was
made showing that the plaintiff, by his next friend, Beckwith,
prayed and was allowed an appeal to the supreme court, a bond upon
his part being waived by the other parties; that the plaintiffs in
the cross-bill prayed and were allowed an appeal, a bond on their
part being waived, and that the parties, in open court, agreed that
"such appeals may be prosecuted to and the record filed in the
Central Grand Division at the next term, and that one record may be
used for both appeals." Now it is contended that the supreme court
of the state, sitting in the Central Grand Division, could not,
except by consent, entertain jurisdiction of those appeals, and
that the next friend and guardian
ad litem was incapable
in law of giving such consent. It is undoubtedly the rule in
Illinois, as elsewhere, that a next friend or guardian
ad
litem cannot, by admissions or stipulations, surrender the
rights of the infant. The court, whose duty it is to protect the
interests of the infant, should see to it that they are not
bargained away by those assuming, or appointed, to represent him.
But this rule does not prevent a guardian
ad litem or
prochein ami from assenting to such arrangements as will
facilitate the determination of the case in which the rights of the
infant are involved. There is but one Supreme Court of Illinois,
although, for the convenience of litigants, it sits in different
places in that state, and, unless the consent of parties is given,
can take cognizance, when holding its session in a particular Grand
Division, only of cases arising in such division. But it is the
same court that sits in the respective divisions, and a consent by
the next friend or guardian
ad litem that a case be heard
in a particular division could not possibly prejudice the
substantial rights of
Page 134 U. S. 681
the infant. It is true that the consent of the plaintiff's next
friend and guardian
ad litem that the case should go to
the Central Grand Division brought it to a more speedy hearing than
it would otherwise have had if such consent had not been given. But
certainly it was not to the interest of the plaintiff that the
final determination of his case should be delayed. The cases cited
by counsel --
Owens v. McKethe, 5 Gilman 79;
Goforth
v. Adams, 11 Ill. 52, and
People v. Supervisors, 40
Ill. 125 -- do not establish any different principle. They decide
nothing more than that, in the absence of consent, the supreme
court, sitting in one Grand Division, cannot take cognizance of a
case from another Grand Division.
It is further contended that the Supreme Court of Illinois could
not entertain the appeal from the decree dismissing the cross-bill
of Buckner and wife without an appeal bond's being executed by
them, and that it was not competent for Beckwith to waive the
giving of such bond. In support of this position counsel cite
Chicago, Pekin &c. Railroad v. Trustees of Marseilles,
104 Ill. 91, and
Lewis v. Shear, 93 Ill. 121. In the first
of those cases, the party appealing had not filed a transcript of
the record in the supreme court within the required time nor taken
any steps whatever to bring the case before the court for
consideration. A motion to dismiss the appeal having been made, it
was held that a mere waiver by the appellee of an appeal bond did
not operate to perfect the appeal for any purpose. The court said:
"There is no appeal here for us to act upon; nothing to dismiss.
The case will be stricken from the docket." In the other case
cited, which was an action of replevin, the question was whether
the record showed the requisite amount involved to give the supreme
court jurisdiction. As it did not, the appeal was dismissed, the
court observing that it could not take jurisdiction of a case from
the appellate court unless the record showed in some manner that it
was one of which it could take cognizance. Neither case is an
authority for the proposition that an appeal bond is essential to
the jurisdiction of the supreme court of the state where the appeal
is allowed, and a transcript
Page 134 U. S. 682
of the record is filed in due time. A mere failure to execute
the bond within due time may be ground for dismissing an appeal,
but does not deprive the court of the right to proceed to a
determination of the appeal. So, here, the waiver by the infant's
guardian
ad litem and next friend of a bond by Buckner and
wife upon their appeal, the latter having waived an appeal bond on
his part, did not affect the jurisdiction of the court. And such is
the rule of practice in the Supreme Court of the United States.
Edmonson v.
Bloomshire, 7 Wall. 306,
74 U. S. 311;
Richardson v. Green, 130 U. S. 104,
130 U. S. 114;
Evans v. State Bank, ante, 134 U. S. 330. The
cases cited by counsel from the latter court do not announce any
different rule.
We come to consider whether the record discloses any ground for
holding that the decree of November 13, 1871, was obtained by
fraud, as distinguished from mere error, or by collusion with the
guardian
ad litem. In considering this question, we have
not overlooked the fact that there were replications in the present
suit to both the plea and the answer of Buckner and wife, although
the final decree below inadvertently states that no replication to
the answer was filed. The general contention in behalf of the
plaintiff is that the original and cross-bills were not a genuine
case, but were contrived, and the proceedings in the state court
were conducted throughout for the purpose of depriving an infant of
his estate without bringing attention to the real merits of his
claim to the property in dispute. Of course, if the record
disclosed a case of that character, the decree complained of would
not constitute an obstacle in the way of giving relief to the
plaintiff. What are the grounds upon which the charge of fraud and
collusion is based?
It may be observed that no claim is made of newly discovered
evidence, and that all the facts now relied upon to show fraud and
collusion were disclosed by the record before the supreme court of
the state upon the first appeal, when the merits of Mrs. Buckner's
claim to the property were examined. No effort has been made to
prove any state of case different from that disclosed in the
original and cross-suit. The issue as to fraud must be determined
entirely by the record of the proceedings
Page 134 U. S. 683
in the state court, and by such inferences as may be justly
drawn therefrom, for no evidence apart from that record was
introduced.
It is said that the attention of the court was not specially
called to the various points now made against the theory of a trust
advanced in behalf of Mrs. Buckner. That fact, if established,
would not necessarily show fraud or collusion. But it does not
appear what points were made in argument upon the first appeal to
the supreme court of the state. Certainly the errors assigned by
the next friend in behalf of the infant were broad enough to cover
every objection now raised against the right of Mrs. Buckner to the
property. Those errors were the dismissal of the original bill, the
refusal to grant the relief asked by the plaintiff, and the
admission of incompetent evidence against him. Under such an
assignment of errors, it was competent for the
prochein
ami to contend, as one of the plaintiff's counsel insists he
should have contended, that
"the object of making the deed of May 15, 1861, was to leave the
Buckners free to take sides in the civil war against the United
States without jeopardizing his large estate in the City of
Chicago,"
and that a party making a deed for such a purpose was in no
better position in a court of equity than one who makes a deed to
defraud his creditors. For aught appearing in the record, this view
was pressed upon the supreme court of the state. The absence from
the opinion of that court of any reference to it does not prove
that the guardian
ad litem and next friend failed to make
the point or that he purposely a voided allusion to it. If, in
considering so grave a charge as that of fraud, we should indulge
in conjecture as to what controlled the mind of the state court,
the inference might be fairly drawn that, as this point arose out
of the evidence, it was passed without notice, because the court
regarded it as not sustained by the proof, or as one that ought not
to control the decision of the case.
The depositions of Simon B. Buckner and Jane C. Kingsbury were
taken in the suit brought by the infant in 1870, upon
interrogatories by the plaintiffs in the cross-suit, and
cross-interrogatories by Mr. Lawrence. It is contended that
Page 134 U. S. 684
these persons were incompetent by the laws of Illinois to
testify in support of the cross-bill, and that the guardian
ad
litem failed to object upon that ground to their depositions.
This charge of collusion fails altogether if they were not
incompetent as witnesses. By the first section of a statute of
Illinois passed February 19, 1867, and which was in force when
their depositions were taken, it was provided "that no person shall
be disqualified as a witness in any civil action, suit, or
proceeding," except in certain specified cases, by reason of his or
her interest in the event thereof, as a party or otherwise, or "by
reason of his or her conviction of any crime, but such interest or
conviction may be shown for the purpose of affecting the
credibility of such witness." The second section provides
"That no party to any civil action, suit, or proceeding, or
person directly interested in the event thereof, shall be allowed
to testify therein of his own motion, or in his own behalf, by
virtue of the foregoing section when any adverse party sues or
defends as . . . heir . . . of any deceased person . . . unless
when called as a witness by such adverse party so suing or
defending,"
except in certain cases that have no application here. The fifth
section of the same act provides
"That no husband or wife shall, by virtue of section one of this
act, be rendered competent to testify for or against each other . .
. except in cases where the wife would, if unmarried, be plaintiff
or defendant, . . . and except also in cases where the litigation
shall be concerning the separate property of the wife, in all of
which cases the husband and wife may testify for or against each
other in the same manner as other parties may, under the provisions
of this act."
Pub.Laws Ill. 1867, p. 183.
It is clear from these statutory provisions that Buckner was not
incompetent, by reason of his relation of husband, to testify in
support of his wife's claim to the property, because if Mrs.
Buckner had been unmarried, she would have been a defendant in the
original suit, and the plaintiff in the cross-suit, and also
because that suit concerned her separate property. In the
cross-bill, he joined with his wife in asking that the
Page 134 U. S. 685
trust intended to be created by the deed of 1861 be enforced,
and gave his assent to any decree that would place the property
under her sole control and preserve it for her benefit. This was
regarded by the supreme court of the state as a renunciation by him
of even a life estate, and the decree of 1871 proceeded upon that
ground. Nor was he incompetent by reason of the inhibition
contained in the second section of the act, because, although a
formal party to the cross-suit, he was not directly interested in
the event thereof, and was not, in the sense of the statute, a
party adverse to the heir of his deceased brother-in-law. The only
party adverse to the heir in respect to the issues made by the
cross-suit was Mrs. Buckner. She could not have testified on her
own motion, or in her own behalf unless called by the opposite
party. But, looking at the policy and language of those enactments,
we perceive no reason why Buckner was not competent as a witness,
in support of his wife's suit, under the first section of the act.
We are also of opinion that Mrs. Kingsbury was a competent witness.
She had no interest adverse either to appellant or to Mrs. Buckner.
Her interest in the property was recognized by all the parties. No
decree could have affected her rights. The fact that she was a
party to the suit did not of itself disqualify her as a
witness.
There are other facts in connection with the depositions of
Buckner and Mrs. Kingsbury which are relied upon to establish the
charge of fraud and collusion upon the part of the guardian
ad
litem. They are these: he was not appointed guardian
ad
litem in the cross-suit until November 25, 1870, and yet he
appears from the record to have assumed the position of guardian
ad litem before that date by assenting in writing, under
date of November 22, 1870, that a
dedimus potestatem might
be sued out, on the 30th of November, to take the deposition of
Buckner, thereby waiving the benefit of a notice of ten days given
by the statute in such cases, and he failed to file
cross-interrogatories to Buckner and Mrs. Kingsbury. These facts
contain nothing of substance when taken in connection with other
circumstances. It may be that he did not in fact sign the above
writing until after his appointment
Page 134 U. S. 686
as guardian
ad litem, and that he signed it without
observing its date. Be that as it may, five days intervened between
his appointment as guardian
ad litem and the time named
for suing out the commission to take Buckner's deposition. The
statutory provision requiring ten days' notice for the suing out of
a commission to take depositions is one for the benefit of the
party against whom the depositions are to be read, and might be
waived. The waiver of full notice in respect to Buckner's
deposition was first signed by the attorney of Lawrence and wife,
the latter being the mother and guardian of the infant. It was
equally competent for the guardian
ad litem or next friend
to join in the waiver, unless it be assumed, as we are unwilling to
do, that his fidelity is to be measured by his capacity and
willingness to delay litigation, when there is nothing to be
thereby accomplished. Nor is fraud and collusion to be imputed to
Beckwith because he did not, after his appointment by the court,
file cross-interrogatories to Buckner and Mrs. Kingsbury.
Cross-interrogatories were filed by his partner in behalf of Mrs.
Lawrence, and were of the most searching character. They were
prefaced with formal objections, upon the ground of immateriality
and incompetency, to more than twenty of the interrogatories
relating to the deed of May 15, 1861, to the circumstances under
which it was executed, and to the alleged trust in favor of Mrs.
Buckner. And at the hearing, objections were made to the competency
of the evidence contained in the depositions for the
cross-plaintiffs; but the depositions were received subject to all
legal objections upon the ground of sufficiency, competency, and
relevancy. There is no suggestion that the cross-interrogatories
which were filed did not cover the whole ground of dispute between
the parties. It would have served no good purpose for the guardian
ad litem to repeat them on behalf of the infant, for Mrs.
Buckner was bound to support her claim by proof, and without filing
cross-interrogatories, the infant was entitled to avail himself of
every fact to his advantage brought out by the
cross-interrogatories upon the part of his mother.
Another badge of fraud is supposed to be found in the fact
Page 134 U. S. 687
that the decree dismissing the bill and cross-bill, without
prejudice, was in fact rendered December 31, 1870, and yet was
entered as of December 24, 1870, without objection from the
guardian
ad litem. We assume that the object of all this
was to enable the parties to get the case before the supreme court
at its session commencing in January, 1871, and have it there
determined at an early day. There is nothing in all this to show
fraud or collusion. Of course, the guardian
ad litem, by
technical objections, could have postponed the hearing of the case
in that court until September, 1871; but there is no circumstance
disclosed by the record tending in any degree to show that the
infant would have profited by such delay.
But it is said that the failure of the guardian
ad
litem to apply for a rehearing of the original appeal is
evidence of bad faith upon his part. We cannot assent to any such
view of his duty. The opinion of the state court shows that the
legal questions presented by the appeal were carefully considered,
and there is no ground to suppose that its conclusion would have
been modified if a rehearing had been granted. Be this as it may,
we cannot agree that the mere failure of the guardian
ad
litem and next friend to apply for a rehearing raised any
presumption of infidelity to his trust.
Some stress is laid upon the fact that Beckwith met this suit by
demurrers to the bill, and did not file an answer. This does not
show fraud or collusion. There was no need of making him a
defendant. No relief was prayed against him. He was neither a
necessary nor proper party to the relief asked. If he preferred to
terminate the suit as to himself by a demurrer, it was his
privilege to pursue that course.
In respect to the charge that the case was presented to the
supreme court of the state upon a falsified or changed record, it
is only necessary to say that there is no foundation for it in the
record before us.
Without noticing other matters discussed by counsel, which we do
not deem of importance, we are of opinion that the plaintiff has
failed to show that the decree of November 13,
Page 134 U. S. 688
1871, or any decree subsequent to that date, was in any degree
the result of fraud or collusion. The decree is
Affirmed.
MR. CHIEF JUSTICE FULLER took no part in the consideration or
decision of this case.
