Statement of the Case.

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 practised 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 Illinois, 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 practised, 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 defence; 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 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.”

Statement of the Case.

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 crossbills, was reversed, and the cause remanded, with directions to grant the relief prayed by Mrs. Buckner's cross-bill. 58 Illinois, 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

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 crossbill, 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

Argument for Appellant.

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, crossbill, 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 and 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.

Mr. Lyman Trumbull for appellant.

I. A minor may file a bill to impeach a decree procured by fraud, or for error appearing upon the face of the decree. Lloyd v. Malone, 23 Illinois, 43; Kuchenbeiser v. Beckert, 41 Illinois, 172; Hess v. Voss, 52 Illinois, 472; Lloyd v. Kirkwood, 112 Illinois, 329; Story's Eq. Pl. § 427; Gooch v. Green, 102 Illinois, 507; Wright v. Miller, 1 Sandf. Ch. 103. The demurrers admit the fraud, collusion and falsification of the record as charged, and should have been overruled.

II. The original suit of Henry W. Kingsbury, of Newport, in the State of Rhode Island, an infant seven years and seven months of age, commenced by Corydon Beckwith, as his next friend, July 18, 1870, was instituted without authority of said infant, without filing the bond required by the statute,

Argument for Appellant.

and gave the court no jurisdiction to pass upon his rights. Rev. Stats. Illinois, 1845, c. 47, § 13; Lathers v. Fish, 4 Lansing, 213; Gray v. Larrimore, 4 Sawyer, 638.

III. The so-called cross-bill of Buckner and wife against Henry W. Kingsbury, was, in fact, an original bill. It was not germane to the original suit, and whether germane or not, the Circuit Court had no jurisdiction of the same without the service of process upon the minor. The appointment of Beckwith guardian ad litem of the minor, who had no notice of the cross-suit, on motion of the complainants therein, was error, and did not give the Circuit Court jurisdiction to divest the minor of his real estate. Campbell v. Campbell, 63 Illinois, 462; McDermaid v. Russell, 41 Illinois, 489; Hickenbottom v. Blackledge, 54 Illinois, 316; Wright v. Miller, 1 Sandf. Ch. 123; Walker v. Hallett, 1 Alabama, 379; Graham v. Sublett, 6 J. J. Marsh. 44; Rubber Co. v. Goodyear, 9 Wall. 807.

IV. The Supreme Court of Illinois in the Central Grand Division had no jurisdiction of the appeal from the decree of the Circuit Court of Cook County, except by consent of parties. Art. 6, § 8, Constitution of 1870; Starr & Curtis' Stats. 131; People v. Supervisors of Vermilion County, 40 Illinois, 125; Owens v. McKethe, 5 Gilman, 79; Goforth v. Adams, 11 Illinois, 52.

V. Neither an infant, nor his guardian ad litem, could, by consent, confer jurisdiction on a court which would not otherwise have it. Rhoads v. Rhoads, 43 Illinois, 239; Enos v. Capps, 12 Illinois, 255; Bank of the United States v. Ritchie, 8 Pet. 128; Fischer v. Fischer, 54 Illinois, 231; Wright v. Miller, 1 Sandf. Ch. 103.

VI. It was not competent for the guardian ad litem to waive the giving of an appeal bond, by the cross-complainants on their appeal to the Supreme Court. The giving of a bond is a prerequisite to the allowance of an appeal, and even if it were in the power of the guardian ad litem to waive it, the Supreme Court had no jurisdiction to entertain the appeal without such bond. Rev. Stats. 1845, c. 83, § 47; Gross' Stats. 1871, p. 516; Simpson v. Alexander, 5 Gilman, 260; Chicago, Pekin &c. Railroad v. Trustees of Marseilles, 104 Illinois, 91;