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The Board of Children's Guardians of Marion County v. Shutter.

Conceding that proposition, and yet counsel's contention is not established if the law which gives the sole power or jurisdiction to the court to render the judgment is unconstitutional and void; and if, without such a law in force, the court would have no power to render the judgment in question, then, the law being void, the judgment depending wholly on such void law would also be void. Where, however, the court has jurisdiction to adjudicate upon the subject, derived from other sources than the supposed void statute, even though it may attempt to follow that statute, it does not necessarily follow that its judgment is void.

A judgment founded on a statutory bond, depending for its validity wholly on the statute, which is unconstitutional and void, is not void, and can not be collaterally impeached because the statute is unconstitutional and void. Cassel v. Scott, 17 Ind. 514.

If the circuit court had jurisdiction over the subject and the parties, though it committed the greatest irregularities and errors, its judgment can not be collaterally impeached therefor, as this proceeding attempted to do. Davidson v. Koehler, 76 Ind. 398; Sauer v. Twining, 81 Ind. 366; State, ex rel., v. Morris, 103 Ind. 161.

The circuit court was a court of general jurisdiction. If it was not clothed with all the jurisdiction of the English court of chancery, it is within a branch of the equity powers of the circuit courts of this State that they have the superintendence of infants, idiots and lunatics. McCord, Exr., v. Ochiltree, 8 Blackf. 15.

The power to appoint guardians for infants, idiots, and lunatics, conferred by the statute, is merely declaratory of the power they already possessed. Garner v. Gordon, 41 Ind. 92; Child v. Dodd, 51 Ind. 484; Nealis, Admr., v. Dicks, 72 Ind. 374; Board, etc., v. Rogers, 55 Ind. 297; Erskine v. Whitehead, Err., 84 Ind. 357; McKenzie v.

The Board of Children's Guardians of Marion County v. Shutter.

State, ex rel., 80 Ind. 547; McGlennan v. Margowski, 90 Ind. 150; Bryan v. Lyon, 104 Ind. 227.

We, therefore, hold that the circuit court had ample power to deal with and adjudicate upon the subject of the guardianship, custody and control of minors. The circuit court, therefore, had jurisdiction of the subject.

It is earnestly contended that the circuit court acquired no jurisdiction over the person of the appellee, the minor, whose custody and control was determined by the adjudication. If that is true, the judgment would be void, the same as if jurisdiction over the subject was wanting. The ground upon which this contention is based is, that there was no notice or process served on the infant, notifying her that such an adjudication affecting her was to take place. No notice appears to have been served upon her, except taking her into custody by the appellant before the hearing of their petition. But there was process served on her mother and father, and a full opportunity afforded them to be heard against the granting of the petition, and they appeared at the hearing. But it is ably contended that that is not sufficient to confer jurisdiction over the person of the child.

In some of the States no other notice than notice to parents, or, if no parents, next of kin is required to enable courts to appoint a guardian.

Counsel for appellee have referred us to a large number of cases holding that a summons must be served on an infant the same as an adult, or the judgment will be void as to such infant. And in that class of cases it will be equally so if the infant was but a week old and would. be as unconscious of the reading of the summons to it as a block of wood, and yet the law imperatively requires the service of such a summons on such an infant in that class of cases as much as upon an adult, or the adjudicaVOL. 139-18

The Board of Children's Guardians of Marion County v. Shutter.


tion will be void for want of jurisdiction over the perBut the class of cases they have referred us to, and that we have been discussing, is such only as where the judgment sought or the adjudication to be had is to deprive the infant of some property right, or to injuriously affect such minor in its rights of property. In that respect its rights are precisely the same as an adult; hence it must have the summons read to it precisely the same as an adult, though it does not understand a word of it. Its right to control its own actions is not like an adult.

It is subject either to parental control, the guardian's control, or the control of the court or chancellor, in the absence of parent or guardian, on account of its lack of discretion and knowledge sufficient to guide its own actions for its own best interests. Hence, in a proceeding for the appointment of a guardian for it, the principle of the cases above referred to have no application whatever where it is under 14 years of age. Such an appointment does not deprive it of any of its rights of property, or injuriously affect its rights in that regard. It is but an officer of the court appointed to wield the power of an arm of a court of equity, and no notice to the infant is required. Kurts v. St. Paul, etc., R. Co., 51 N. W. Rep. (Minn.) 221; Appeal of Gibson, 28 N. E. Rep. (Mass.) 296; Reynolds v. Howe, 51 Conn. 472. We therefore conclude that the circuit court had jurisdiction of the person of the infant, and the subject-matter of the adjudication. It may have erred at every step of those proceedings; we do not decide that it did or did not, because such errors and irregularities can not be inquired into on a writ of habeas corpus. R. S. 1881, section 1119; Wentworth v. Alexander, 66 Ind. 39; Kinningham v. Dickey, 125 Ind. 180; Turner v. Conkey, 132 Ind. 243; Smith v. Hess, 91 Ind. 424; Lowery v. Howard, 103 Ind. 440;

Tucker v. Roach.

Davis v. Bible, Sheriff, 134 Ind. 108.

Such errors,

if any were committed, must be relieved against just as in any other adjudication--by appeal, bill of review or any method known to the law for relief against an erroneous judgment. The conclusion we have reached not only finally disposes of this case in this court, but also in the court below, without deciding anything whatever about the constitutionality of the statute so ably and exhaustively discussed by counsel on both sides. Under such circumstances, our duty does not require us to enter upon that field of investigation. Cummings,

Treas., v. Stark, 138 Ind. 94.

The judgment is reversed and the cause remanded, with instructions to overrule the exceptions to the amended return.

Filed June 15, 1893; petition for rehearing overruled Nov. 15, 1894.

No. 16,924.


HARMLESS ERROR.-Finding for Plaintiff on Paragraph of Complaint.Errors Relating Thereto.-Where the finding is for the plaintiff, as to a paragraph of complaint, all decisions in relation to such paragraph,. whether relating to the pleadings, evidence or instructions, if erroneous, were harmless as to him.

CANCELLATION OF INSTRUMENT.-Promissory Note.-Mortgage.-Fraud. -Undue Influence.-Complaint.-Where a complaint, in an action to cancel and set aside a note and mortgage procured by fraud and undue influence, alleged, in substance, that the plaintiff was a feeble old man in ill health, of weak mind and in straitened circumstances, and that defendant, with full knowledge of all the facts, in bad faith, and for the fraudulent purpose of cheating and defrauding plaintiff, instituted an unfounded action against him for damages sustained in a real estate transaction between them, by reason of misrepresentations of the plaintiff; and that afterwards, by threats

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165 654

Tucker v. Roach.

and undue influence, defendant intimidated plaintiff, and, on account of plaintiff's old age, ill health and weak mind, induced him to execute the note and mortgage for the fraudulent purpose aforesaid, the complaint is sufficient on demurrer.


Consideration.-Compromise of Suit.-Fraud.-Intimidation.Note.-Mortgage.—Where the jury find for the plaintiff on such paragraph of complaint, the finding, in effect, was that the note and mortgage were without consideration, were procured by fraud and intimidation, and that the suit compromised was not a good cause of action, nor brought in good faith; and, therefore, the amount agreed upon in the compromise was not a sufficient consideration for the note and mortgage.


Evidence.-Financial Condition.-Fraud.-Intimidation.-Mental and Physical Condition.-In an action to cancel a note and mortgage alleged to have been procured by fraud and intimidation, the fact that the plaintiff was, at the time of their execution, in straitened circumstances, added to old age and feebleness of mind and body, is certainly an element that may be taken into consideration in determining whether he was overreached in a fraudulent contract.

From the Hamilton Circuit Court.

T. J. Kane and L. O. Clifford, for appellant.
W. Neal and J. F. Neal, for appellee.

HOWARD, J.-This was an action brought by the appellee for the cancellation of a certain note and mortgage given by the appellee to the appellant. The complaint was in three paragraphs.

In a former transaction appellee had exchanged with appellant a farm in Missouri, together with certain personal property in the city of Indianapolis, for a farm in Hamilton county, in this State..

Appellee alleged in the first paragraph of his complaint, that the mortgage in suit was given upon his Hamilton county farm, and, by the terms of the mortgage, it was provided that if appellant should sell the Missouri farm within two years for more than a certain sum, such excess should be applied upon the note. secured by the mortgage given by appellee. It was

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