Kingsbury v. Buckner, 134 U.S. 650 (1890)

Me. Justice Haelaé,

after stating the case, 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. Lloyd v. Malone, 23 Illinois, 43; Kuchenbeiser v. Beckert, 41 Illinois, 172, 177; Hess v. Voss, 52 Illinois, 472, 478; Kingsbury v. Buckner, 70 Illinois, 514, 516; Lloyd v. Kirkwood, 112 Illinois, 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

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 v. Ketchum, 101 U. S. 289, 296; Pacific Railroad of Missouri v. Missouri Pac. Railway, 111 U. S. 505, 519, none of the cases. cited from either court sustain the proposition that a party, whether an infant or 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 Illinois, 514, 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, 481, (cited in 70 Illinois, 517,) 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 Avere open to dispute on the first, would lead to endless litigation.” So, in Durant v. Essex Co., 101 U. S. 555, 556, it is said :

“ On a’ mandate from tbis court affirming a decree; the Oircuit 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 i.t could do after that was to obey our mandate when it was sent 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, 284; The Lady Pike, 96 U. S. 461, 462; Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736, 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, 570 — cited with approval in Kingsbury v. Buckner, 70 Illinois 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 • ah application to that court directly fpr thé purpose'. This appears to be the practice of the Court of Chancery and House

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, softer 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 on 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 of this court, came too late.” See, also, United States v. Knight's Administrator, 1 Black, 488, 489; Kimberly v. Arms, 40 Fed. Rep. 548; Story’s Eq. Pl. § 408; Cleveland v. Quilty, 128 Mass. 578, 579; McCall v. Graham, 1 Hen. & Munf. 12, 13; Campbell v. Price, 3 Munf. 227, 228; Campbell v. Campbell, 22 Grattan, 649, 674; Jewett v. Dringer, 31 N. J. Eq. 586, 590; Rice v. Carey, 4 Georgia, 558, 570; Watkins v. Lawton, 69 Georgia, 674, 675; Ryerson v. Eldred, 18 Michigan, 490; 2 Barb. Ch. Pr. 2d rev. ed. 92.

It has been suggested that the rule is different, in the case of infants, ?md 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

show cause after be 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 December 31, 1870, dismissing his bill in the original suit. Rev. Stats. Illinois, 1845, p. 421, § 53; Rev. Stats. Illinois, 1874, p. 785; Enos v. Capps, 15 Illinois, 277; Barnes v. Hazleton, 50 Illinois, 429, 432; Wadhams v. Gay, 73 Illinois, 424; Hess v. Voss, 52 Illinois, 472; Lloyd v. Kirkwood, 112 Illinois, 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 proohein amy, 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. Morris, 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 iúfant sues out a writ of error, and a decree in this court is passed against him, such decree would bfe 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 error, and, as such, concluded by the judgment or decree.” And in Kuchenbeiser v. Beckert, 41 Illinois, 172, 176, 177, it was said: “It was urged that the trial was had and the decree executed and carried into 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 minor becomes 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.” Lloyd v. Malone, 23 Illinois, 43; Lloyd v. Kirkwood, ubi supra; Richmond v. Tayleur, 1 P. Wms. 734; Chambers on the Property of Infants, 798. The infant, -by his prochevn amy, havirig prosecuted an appeal to the Supreme Court of Illinois from the original decree rendered

in the suit brought by him, and having appeared by guardian ad litem to the appeal of Buchner 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 Ilardwicke said that “ it is right to follow' the rule of •^law, where it is held an iiifant is as much bound by a judgment in his own action, as if of fuff age; and this is general, ■ unless gross laches, or' fraud and collision appear in the prochein aniy; 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 fiffl 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 infapt.

■ 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 Illinois, 489, 491, it was decided that yrhen notice by publication against infant non-resident defendants in chancery was nugatory and void, the appointment of guardians ad Utem 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 Illinois, 462, in which the court declared' •the 47th section of the old chancery statute of Illinois, (Rev: Stats. Illinois, 1845, c. 21,j so far as it authorized a decree against infant defendants, without service of process on them, to be unconstitutional. In Chambers v. Jones, 72 Illinois, 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

decree. Tbe 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 Kings-bury, 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; Washington Bridge Co. v. Stewart, 3 How. 413; Des Moines Nav. Co. v. Iowa Homestead Co., 123 U. S. 552, 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 ap-. péllate 'court, but which is void by reason of the party 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 Co'ok 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, 8 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 Illinois, 31,

32, the court, referring to the provisions of the Bevised 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 i^garded .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 Illinois, 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; Public Laws' Illinois, 1871-2, ,p. 329.

-But it is said that the subject matter of the original bili was simply the claim alleged to be asserted, in hostility to the plaintiff, underAhe 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 Utem, 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 incum-brances 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 wifé 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

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 Illinois, 45, 49.

■In Jones v. Smith, 14 Illinois, 229, 230, 231, 232, the relief sought was a decree establishing the plaintiff’s title to certaiii 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

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 Illinois, 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

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 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 large discretion on the one haiid, 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, 143, 144; Macphers’on 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 intermed-dler,. and to allow some one 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

Division in which the case is decided, or, by consent of the' parties, to any other Grand Division.” Illinois Constitution of •1810, 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, Beck-with, prayed and was allowed an appeal to the Supreme. Court, a. bond, upón 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 recoi’d 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 proehein amy from assenting to such arrangóments 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,', alpd a consent by the next friend or guardian ad litem that a ca'sé be' heard in a particular division, could not possibly prejudice the substantial rights of

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 Illinois, 52; and People v. Supervisors of Vermilion County, 40 Illinois, 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 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 Illinois, 91, and Lewis v. Shear, 93 Illinois, 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 ap-pellee 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 tran

script 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, 311; Richardson v. Green, 130 U. S. 104, 114; Evans v. State Bank, ante, 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 cáse 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 pro

ceedings in the state court, and. by such inferences as may be justly drawn,tji.eref rom ; 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 proohein amy 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 this 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 fri.end failed to make the point, or that “he purposely avoided 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. Kings-bury 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

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 which cases the husbáh'd 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 Illinois, 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

trust intended to be created by the deed of 1861 -be enforced, and gave Ms assent to any decree that would place the property under her sole control and preserve it for her benefit.' TMs 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 fhat Mrs. Kingsbury- was a competent witness. She had np 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 tó 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-interrogatoriés to Buckner and Mrs. Kings-bury. These .facts contain nothing of substance, when taken in connection with other, circumstances. It maybe that he did not, in fact, sign the above writing until after his appoint

ment 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 day's’ notice forthe suing out óf 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 deposition3 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 orinext friend to join in the waiver, unless it be as- • sumed, as • we are unwilling to do, that his fidelhw 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 wére 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

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 mete failure of the guardian ad litem and next friend to apply for á 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 prqper party to the relief asked. If he preferred to terminal© 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 qnly 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.

1871,. or any decree subsequent to that date, was, in any degree, the result bf fraud or collusion.

The decree is Affirmed.

Me. Chief Justice Fullee took no part in'the consideration or decision of this case.