« PreviousContinue »
issuing of the subpoena, an appearance was entered by a solicitor for the infant defendants, followed by a petition on their behalf, by their mother, for the appointment of a guardian ad litem, stating, according to the form given in Daniell's Chancery Pleadings and Practice, already cited, which is identical with that given in Smith's Chancery Practice, (page 576,) that a bill had been filed, and that the petitioners have entered their appearance, and are preparing to answer the same; that the petitioners are infants; and that the person named is a proper person to be appointed guardian ad litem to defend the suit. This was in accordance with the course of practice in the English high court of chancery. The jurisdiction of that court over the persons and estates of infants, whether originally derived from the crown, as parens patriae, and thence transferred to the court, or assumed as customary law, without formal delegation, is firmly established as a judicial function of the court, and is exercised by the chancery judges as a matter of discretion, except so far as the power is curtailed or regulated by stat. ute. 3 Pom. Eq. Jur. § 1304; 2 Story, Eq. Jur. &S 1327, 1334. And when an infant is made party defendant in a suit, although he may not be under a general guardian appointed by the court, he is treated as a ward of the court, and as being under its special cognizance and protection. 2 Story, Eq. Jur. § 1357. In Chambers' Law of Infants, (Introduction, p. 25,) it is said that an infant made a ward of the court by bill is "in every sense under its protection and control. The mere filing of a bill, to which the infant is a party, makes an infant a ward of court, and, when the infant is once a ward, any matter may then be determined on petition or motion." In McPherson on Infants, (page 396,) it is said: "Where a suit is instituted against an infant, his infancy is not noticed in the bill, unless it be a material fact in the cause, and he is served with the subpoena, and must appear in the usual way.” It is further said: “A solicitor ought not to take upon himself to appear for an infant defendant without some authority from the infant's friends.
After an appearance has been entered for the infant, the court appoints a guardian to conduct his defense,
called 'guardian ad litem.'” And the practice
And the practice as to the appointment of guardians ad litem is then given in detail. It is said in Smith's Chancery Practice (volume 1, p. 122) that "the appearance of the defendant is necessary, except where otherwise provided for by act of parliament, to give the court jurisdiction over the subject matter in dispute." The directions given in the work as to the service of the subpoena are the same in respect to infant as to adult de fendants, and it is nowhere intimated that personal service on them is a prerequisite to the appointment of a guardian ad litem when they voluntarily appear, and application is made on their behalf for such appointment. In case of nonappearance, proceedings might be taken by the plaintiff against the infant defendant to compel appearance, and to bring the infant before the court by a messenger or by a commission, in order to have a guardian ap pointed. Pages 113, 114, 145. The cases are numerous which
show that the court exercised its jurisdiction over infant defendants, and appointed a guardian ad litem, after appearance in their behalf by a solicitor upon their application, or upon that of the plaintiff when the infant failed to apply, and where there had been no service of the subpoena upon them. A voluntary appearance by any defendant, adult or infant, was all that was necessary to call for and justify the action of the court in assuming jurisdiction. Lord Redesdale says, in his treatise on Pleadings and Practice in Equity:
"It is a rule in equity practice that no decree can he passed against a deferdant without his real or constructive appearance. By his appearance, he submits to the jurisdiction of the court." Mitf. Pl. & Pr. 432.
In practice, this rule included infant defendants.
In Cookson v. Lee, 15 Sim. 302, the infant defendant had appeared by a solicitor, and, the time to answer the bill having expired, the plaintiff moved for the appointment of a guardian ad litem. The question was raised whether there ought not to be proof of service of the subpoena, and of notice of the motion. “The vice chancellor said that, as the infant had appeared, the service of the notice of motion on the solicitor who had entered the appearance was sufficient, and that an affidavit of the service of the subpoena was not necessary, and therefore he should make the order." Lloyd v. Rossmore, 9 Ir. Eq. 488, seems precisely in point.
An application was made to the vice chancellor, on behalf of an infant, for the appointment of a guardian ad litem. The infant had not been served, but an appearance had been entered for him by a solicitor; and the question was whether, without service on the infant, the guardian could be appointed. The case stood over for a week, and the vice chancellor then rendered his decision, as follows:
"It is alleged that there is a difficulty in this case, because the infant defendant had not been served, but I am of opinion that a guardian may be appointed notwithstanding this fact. Any defendant, whether an infant or of full age, may appear gratis. If an appearance has been entered for an infant, an affidavit of service of the subpoena is not necessary to entitle the plaintiff to appoint a guardian. Cookson v. Lee, 15 Sim. 302. And in Wood v. Logsden, 9 Hare, Append. 26, proof of appearance of the infant to a claim was held sufficient to enable the court to dispense with an affidavit of the service of the writ of summons. So, also, in Bentley V. Robinson, 9 Hare, Append. 76. Aroplication should, in such case, be made to the solicitor who had entered the appearance to appoint a guardian. Appearances are entered for infants in the same way as in the case of defendants; and if a solicitor, without any instruction, causes an appearance to be entered for an infant defendant, the appearance will be set aside, (1 Daniell, Ch. Pr. [5th Ed.] p. 533, citing Richards v. Dadley, (pot reported,) and Leese v. Knight, 8 Jur. [N. S.) 1006, 10 Wkly. Rep. 711,) which shows that if such instructions had been given the appearance would have been regular. I am of opinion that a solicitor must be taken, in the absence of proof to the contrary, to have authority from his client to enter an appearance, and that that may be although the party is an infant, and that when once the appearance has been entered the court will act upon it without service."
It was the constant practice of the court of chancery to prescribe the mode of bringing the infant defendants within the jurisdiction of the court, by directing what should be sufficient service
of the subpoena, both as to resident and nonresident infant de fendants, and whether the issuing of a commission should be required, or dispensed with, in order to save expense, or for any other reason. Manifestly, the court would have had no power to direct a mode of substituted service, of its own motion, and without the authority of a statute or general order, if it did not possess such power as an incident of its jurisdiction over infants. A plain distinction exists between jurisdiction and the exercise of jurisdiction. Bango v. Duckinfield, 18 N. Y. 592. Where a court has jurisdiction of the subject-matter and of the parties, in case they are properly brought before it, as in the case at bar, which was that of a judgment creditors' suit against persons within its territorial jurisdiction, in aid of liens asserted as to property within the same jurisdiction, no question can arise, except as to the acts of the court in the exercise of a jurisdiction which belongs to it. Where a court has no jurisdiction to proceed at all, its acts must be void. Thus, in England, the court of chancery has uniformly held that it had no jurisdiction to direct the sale of infants' lands on petition; Lord Hardwicke saying in Taylor v. Philips, 2 Ves. Sr. 23, “there is no instance of this court binding the inheritance of an infant by a discretionary act of the court;" and in Russel v. Russel, 1 Moli. 525, the vice chancellor said that since that decision of Lord Hardwicke “the chancellor has never attempted to deal with the legal inheritance of infants without the aid of an act of parliament." And the same rule was applied in our court of chancery. Rogers v. Dill, 6 Hill, 415. But where the court had inherent jurisdiction over the subject and over the parties, the mode of the exercise of such jurisdiction, in the absence of statutory regulations, was discretionary; and accordingly we find that in determining the course of practice as to infant defendants, and the exercise of jurisdiction in regard to them, whether resident or nonresident, the court was governed by its own precedents, and acted on its own discretion.
Instances of the control of the court over the manner of serving the subpoena, and of bringing infant defendants into court, where the infants were nonresident or concealed, or could not be fcund within the jurisdiction, and the mode of substituted service was directed by the court according to its discretion, are found in Thompson v. Jones, 8 Ves. 141; Jongsina v. Pfiel, 9 Ves. 357; Lingren v. Lingren, 7 Beav. 66; Smith v. Palmer, 3 Beav. 10; Lane v. Hardwicke, 5 Beav. 222; Wood v. Logsden, 9 Hare, Append. 26. Instances of the exercise of a like power as to infants within the jurisdiction, in addition to the cases already cited, are the following: In Stillwell v. Blair, 13 Sim. 399, there were 20 infant defendants in the suit; 2 of them, residing within 20 miles of London, appearing in court for the purpose of having a guardian ad litem assigned to them. Their solicitors stated that the rest of the infants, who were within the jurisdiction, resided in different counties, more than 50 miles from London, and, to save the expense of commissions, applied to the court to appoint the same guardian as assigned to the two for the others, and the order was made. In Re Greaves, 2 Wkly. Rep. 355, application was made to the lord chancellor for the appointment of a guardian ad litem for an infant respondent on an application for property under a railway act.
There had been no service of process on the infant. The court appointed the guardian, saying that the jurisdiction arose from “the necessity of taking care of such persons.” In Fletcher v. Rogers, 1 Wkly. Rep. 74, a guardian ad litem was appointed, without a commission, to save expense. No English case has been cited by the learned counsel for the defendant, invalidating or questioning a decree of the high court of chancery rendered against an infant defendant, in the exercise of jurisdicticn, after appearance by a solicitor, and the appointment of a guardian ad litem by the court on the application of the natural guardian of the infant, without service of process, nor can I find that any judicial doubt has ever existed in the English courts on the subject. As the practice of the English high court of chancery governed the procedure of the United States circuit courts in 1868, the jurisdiction exercised in the Drake suit by the appointment by Judge Blatchford of the guardian ad litem for the infant Goodridge defendants, after appearance by a solicitor in their behalf, was in accordance with that practice, and was a valid exercise of jurisdiction. The appearance of the infants after the filing of the bill and the issuing of the subpoena was the equivalent of personal service upon them of the subpoena, and dispensed with the necessity of such service; and they could not be heard to allege, after such appearance, and the appointment of a guardian ad litem for them by the court on the application of their mother, that the subsequent proceedings were void for want of jurisdiction because they were not personally served with the subpoena.
It is correctly stated in the brief of the learned counsel for the defendant that in some instances the appointment of a guardian ad litem without previous service of process upon infant defendants, and without a commission, was allowed by the court of chancery in England where the circumstances were such that a commission would involve undue expense, in cases of resident infants, as well as where the infants were concealed, and upon the presentation of a proper case; such action by the court being a sort of substituted service, analogous to our service in pursuance of statutory provisions by special order on defendants outside the state, or service by publication. This conceded course of practice, which, as already seen, extended also to cases of nonresident infants, seems to me conclusive on the question that service of process on infant defendants was not a prerequisite to the jurisdiction of the court in any case where the appointment of a guardian ad litem was concerned. Our courts have no power, in the absence of a statute conferring it, to authorize any method of substituted service, while the English court of chancery had the power, wholly irrespective of statute, and exercised it according to its discretion, in reference to infants outside the realm, as well as those resident within the jurisdiction. If the court could, by virtue of its inherent powers, appoint a guardian ad litem where no process had been served, and prescribe a mode of service where the infant was nonresident, or could not be found within its terri. torial jurisdiction, the same power could undoubtedly be exercised, in the absence of statutory prohibition, as to resident infants, voluntarily appearing, and asking the aid of the court. It is not at all necessary to hold that the circuit courts of the United States, in the exercise of their powers conformably to the practice of the high court of chancery in England, as provided by rule 90, (United States Equity Rules,) are invested with the plenary power of the court, as parens patriae. As clearly pointed out by Mr. Justice Field in Insurance Co. v. Bangs, 103 U. S. 435, the states of the United States, and not the federal government, except as to the District of Columbia, stand, in reference to the persons and property of infants, in the situation of parens patriae, and therefore, in a case where the infant sought to be charged had no property within the district to which the territorial jurisdiction of the circuit court of the United States was confined, and was not within the jurisdiction, there is no authority in the circuit court to appoint a guardian ad litem, by virtue of any supposed general power of courts of equity over the persons and property of infants. Accordingly, says Mr. Justice Field:
“The authority of the federal courts can only be invoked within the limits of a state, for such an appointment, where property of the infant is involved in legal proceedings before them, and needs the care and supervision of an officer of that kind; and those courts will always see that a proper guardian ad litem has charge of the infant's interest, where his property is involved in proceedings before them."
He goes on to say that in the case under consideration the infant possessed no property in Michigan, where the suit in equity was commenced against him, nor did the suit concern any property, real or personal, but was brought to cancel a personal contract made with the infant's father, and, under such circumstances, any decree respecting it “would necessarily have been coram non judice, unless the parties interested were before the court upon the service of a subpoena, or their voluntary appearance. The infant, being absent from the state, could not be personally served.”
It is thus clear that the federal courts have original jurisdiction, in respect to infants, commensurate with that of the English court of chancery, when the particular facts of the case show that property of the infant is within the district, and that the residence of the infant is within the same limits, so as to give the court jurisdiction over both subject-matter and person, and the jurisdiction thus acquired must be coextensive, for all purposes, with that of courts of equity of the state. Otherwise, infant citizens of the United States, resident within the territorial jurisdiction of the United States circuit court, when impleaded as defendants in an action properly cognizable in that court, and affecting property situated within its jurisdiction, would not have like protec