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tion as that accorded by the laws of their own state in similar actions brought in the state court. It would be strange if the unqualified delegation by the states to the federal courts of jurisdiction, in equity, in suits by subjects of a foreign country against citizens of a state, did not give the federal courts plenary powers for the protection of infant defendants, when such jurisdiction is invoked against them. Messrs. Drake, Kleinwort & Cohen had the right to sue their debtors in New York, either in the state or the federal court. They brought their common-law actions in the former, and their equity suits in the latter. It is inadmissible to assume that the federal court had not power to protect the infant defendants in the equity suit, equal to that which the state court would have had, in case the complainants had proceeded in the state court. The difference related only to the procedure, which in the federal court was regulated, not by state law, but by federal law.

Our own Reports are not wanting in cases holding that, in the absence of any statutory inhibition, the voluntary appearance of an infant defendant in an equity suit, by a solicitor, is equivalent to personal service of process upon him. In Varian v. Stevens, 2 Duer, 635, the appointment of a general guardian of infant de fendants in a partition suit, as their guardian ad litem, was objected to because the guardian had been appointed after an appearance entered for the infants, but without personal service upon them; the objection was overruled, and the purchaser compelled to complete his purchase, on the ground that, although the Code required personal service, it also provided that voluntary appearance of the defendant should be "equivalent to personal service of the summons upon him," and that an appearance on their behalf (i. e. the infant defendants) "dispensed with the personal service." And in Rogers v. McLean, 34 N. Y. 536, the court of appeals held that it was the settled law, as decided in Croghan v. Livingston, 17 N. Y. 218, after full consideration, that the court of chancery had original jurisdiction of the action, which was for a partition of lands, without the aid of any statute; that the plaintiff was not bound, in his bill, to notice the fact that the defendants—any or all of them-were infants, but he might frame his bill and issue a subpoena as if they were all adults; and it is then said: “After they were brought in open process, it was necessary, both at law and in equity, that guardians should be appointed for the infant defendants;" but that "no law could be found holding that a judgment or decree, when they appeared by attorney, would be void.” The papers produced by the defendant from the files of the court in reference to the proceeding, after the decree in the Drake suit, in which the purchasers at the receiver's public sale claimed to be discharged on the ground, among others, of the nonservice of the subpoena on the Goodridge infants, show that this objection was overruled by the court. As already seen, a stipulation has been made by the parties to it to the effect that it should be assumed, for the purposes of the proceeding, that the infants were not served with process. While this stipulation is

not evidence in this action as to any fact, and does not, by its terms, relate to any fact at issue here, it is proof that the legal question of the validity of the sale, on the assumption that the infant defendants were not served with process, was passed upon by the court, and that its decision upheld the sale. No opinion was filed, and the decision was not reviewed on appeal, as the purchasers were discharged by the voluntary act of the receiver, and a private sale was made, under the decree, as amended to that end. The effect of the proof on this branch of the case is only to show that the attention of the court was called to the question whether it had exercised its jurisdiction improperly or irregularly, and that its decision was in favor of the jurisdiction it had assumed.

If this decision of Judge Blatchford were in conflict with any adjudged case in the federal courts on the jurisdictional question involved here, I should not regard it as binding, but I do not find any conflicting adjudication. The authorities cited by the learned counsel for the defendant do not seem to me to be ap plicable. Where the federal courts have had to deal with jurisdictional questions arising under state statutes, they are necessarily confined to determining the effect of the local law, and the application of those laws prescribing the prerequisites or limits of jurisdiction in no way touch the point of the original equity jurisdiction of the federal courts. Thus in Earle v. McVeigh, 91 U. S. 503, the question was as to the prerequisites of jurisdiction, under the statute of Virginia, as to service of process against nonresidents. In Pennoyer v. Neff, 95 U. S. 714, and in Settlemier v. Sullivan, 97 U. S. 444, the question of jurisdiction arose on the provisions of the statutes of Oregon as to service of process,—in the former case, as to service on husband and wife by publication, and in the latter case as to nonresidents, and the effect to be given the state statutes, respectively, in the federal courts. In Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. Rep. 328, the case turned on a like question of sufficient service under the statutes of Colorado. Insurance Co. v. Bangs, already referred to, is wholly aside from the point involved here. It held only that the United States circuit court could not, under any general equity power, acquire jurisdiction in the state of Minnesota over a nonresident infant, in a purely personal action, where the infant had no property in the state, and had never been served with process. The case most strongly pressed on behalf of the defendant as a controlling authority is Woolridge v. McKenna, 8 Fed. Rep. 650, where the question involved arose on a motion to remand to the state court of Tennessee a suit in equity attempted to be removed into the United States circuit court by the father of an infant defendant absent from the state in which the suit was commenced, and before the infant defendant had been properly bound to defend in the state court. In discussing one of the many questions arising in the cause the learned district judge uses the following language:

"In original cases in the courts of the United States, sitting in equity, there can he no defense otherwise than by guardian ad litem, and one cannot be

appointed, nor the infant bound, until service of process upon him. Equity Rule 87; Bank v. Ritchie, 8 Pet. 128; O'Hara v. MacCornell, 93 U. S. 150; In. surance Co. v. Bangs, 103 U. S. 435; Carrington v. Brents, 1 McLean, 174."

The point intended to be emphasized by this dictum, evidently, was that there was no power in the court to treat any other kind of service as a substitute for personal service, for the learned district judge goes on to say that while, under the English chancery practice applicable under rules 87 and 90 of the supreme court, a guardian ad litem is appointed to defend for an infant, “never' is service of process upon the guardian alone, or upon the parent, or other substituted process of that character, sufficient to bind the infant, where he is personally an essential party defendant. It must be served on him in person. See the authorities above." As a general proposition, this is unquestionably true, but if it was intended as a statement that where an infant defendant appeared by an attorney, and the court, on such appearance, and on the petition of the natural guardian, appointed a guardian ad litem, it would not acquire jurisdiction without previous personal service of the process on the infant defendant, it is in conflict with the authorities, and is wholly unsupported by the cases cited in its support. This will appear on a scrutiny of the citations in the order in which they appear in the opinion. Equity rule 87 is entirely silent as to service on the infant defendants, and simply empowers the court to appoint guardians ad litem. In Bank v. Ritchie, 8 Pet. 128, a bill was filed in the supreme court of the United States for the District of Columbia to review a decree of that court upon various grounds, one of which was that the court "appointed a guardian ad litem without naming the infant defendants, or causing them to be brought into court to have a guardian appointed, and without any averment or proof that either of them was a minor.” Page 131. The court held in regard to this assignment of error as follows:

"In all suits brought against infants, whom the law supposes to be incapable of understanding and managing their own affairs, the duty of watching orer their interests devolves, in a considerable degree, upon the court. They defend by guardian to be appointed by the court, who is usually the nearest relation not concerned, in point of interest, in the matter in question. It is not error, but it is calculated to awaken attention, that, in this case, though the infants, as the record shows, had parents living, a person not appearing, from his name, or shown on the record, to be connected with them, was appointed their guardian ad litem. He was appointed on the motion of the counsel for the plaintiffs, without bringing the minors into court, or issuing a commission for the purpose of making the appointment. This is contrary to the most approved usage, and is certainly a mark of inexcusable inattention. The adversary counsel is not the person to name the guardian to defend the infants."

The decree under review was reversed upon other grounds, and there is nothing in the opinion of Chief Justice Marshall intimating that the service of process upon the infant defendants was such a prerequisite of the jurisdiction of the court as to render the final decree void for want of it. On the contrary, the criticism,

*

as made, related to the person appointed as the guardian ad litem, and to the fact that the plaintiff named him without any action whatever to bring the infants into court.

O'Hara v. MacCornell, 93 U. S. 150, was an appeal from a de cree of the United States circuit court for the western district of Pennsylvania, entered against a minor who was a married woman, without the appointment of any guardian ad litem, or any appearance by, or for her. The court say:

“It was the duty of the court, where the bill, on its face, showed that the party whose interest was the principal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her, in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband, nor he who is styled her guardian in the bill, appeared to defend her interests, it was the more imperative that the court should have appointed some one to do it. * It was therefore error in the court to proceed to the decree without appointing a guardian ad litem.”

There is no suggestion that personal service of the minor de fendant was a prerequisite to jurisdiction, much less that want of such service would render the decree void.

Insurance Co. v. Bangs has already been referred to. The record there of an equity suit in Michigan to cancel a contract made by the father of an infant defendant showed an attempt to acquire jurisdiction over such infant, notwithstanding he was a nonresident of the state, and possessed no property in it, and that the suit did not concern any property, real or personal, within the state, belonging to the infant. The opinion expressly distinguished it from cases affecting the interest of infants in real property within the state of their residence, and cited with approbation cases where decrees or judgments have been upheld though rendered where a guardian ad litem had been appointed, "without service of process on the infant.” 103 U. S. 440.

The last case cited by Judge Hammond is Carrington v. Brents, 1 McLean, 174, in which Judge McLean held, expressly, that while it did not appear that, in the suit which was under review before him, process had been served on the infant, or a guardian ad litem appointed by the court, and that for these omissions or errors the decree might have been reversed by an appellate court, these were only irregularities, and did not render the judgment void.

I think it is clear that the dictum of Judge Hammond is meant only to express the general proposition that infant defendants must be served with process as other defendants are served, and that the court will not take action in regard to them until they have been brought before it in the same manner as other defendants, but does not mean that they cannot appear by attorney, and petition by their natural guardian for the appointment of a guardian ad litem, and thus give the court jurisdiction to protect their interests. Such a proposition would be directly counter to what is said by Mr. Justice McLean in Lessee of Nelson v. Moon, supra, as to the appointment of a guardian ad litem on an appearance by attorney without service of process on the infants:

"A judgment or a decree may be treated as a nullity if it appear from the record that there was neither a service of process, nor a waiver of it. But in the present case there was an appearance according to the forms of law, and that gave jurisdiction to the court.” Page 321.

In Robb v. Lessee of Irwin, 15 Ohio, 689, the court considered the whole question whether infants can be made parties defendant in a chancery suit, so as to bind them by a decree, without personal service, merely by the appointment of a guardian ad litem, and held that decrees entered under such circumstances are generally, if not universally, upheld. The supreme court of the United States in Insurance Co. v. Bangs, supra, refer with approval to the case last cited, and say:

"In Robb v. Lessee of Irwin it appeared that a guardian ad litem for infant heirs had been appointed in a proceeding for the sale of certain real proj erty in which they were interested. In an action of ejectment subsequently brought by the heirs, it was held by the supreme court of Ohio that the pra ceeding was not vitiated hy the appointment of the guardian ad litem without previous service of process on the infant.”

After a careful examination of the question I see no reasonable ground of objection to the validity of the decree in the Drake suit, for want of service of process on the Goodridge infants, jurisdiction having been acquired by the court by their voluntary appearance, and the appointment of a guardian ad litem, on the application of their natural guardian. To hold otherwise would involve the assumption that the English court of chancery acted without authority in all the cases where the court controlled the manner of service of process on infants according to its discretion, and exercised jurisdiction by appointing guardians ad litem where no service had been made on the infant defendants sought to be bound, and would also be against the weight of authority in the federal courts, and the courts of this state and of other states. Upon both branches of the case, and upon the facts and the law, as they appear to me, I am therefore of opinion that no reasonable doubt exists as to the validity of the title to the entire premises in question, tendered by the plaintiff to the defendant; that such title was and is good and marketable; that the plaintiff is entitled to a specific performance by the defendant of the contract alleged in the complaint; and that judgment for such specific performance should be entered. Following some precedents which seem to me to be applicable here, in reference to the rule as to costs in cases of this description, I think the judgment should be without costs.

(3 Misc. Rep. 403.)
In re ETHEL ST.

In re AVENEL.
(Supreme Court, Special Term, Monroe County. April, 1893.)
EMINENT DOMAIN-OPENING STREET, NOMINAL DAMAGES.

In proceedings to condemn an easement in land for a street extension it is proper to award only nominal damages if there already exists an easement of passage on the land, arising from the fact that the owner's grantor, in deeds of the adjoining lands, described them as bounded by a street such as is sought to be opened.

v.24N.Y.s.no.8—44

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