119 N.Y.S. 942 | N.Y. App. Div. | 1909
The infant children, upon the death of their mother, became the owners of the equity of redemption of a part of the mortgaged premises, subject to the tenancy by the curtesy of their father. The estate of the mother terminated by her death, and their title came by operation of law, and they should be made parties to the action. (15 Ency. PI. & Pr. 651.)
The effect of filing the notice of pendency of action was “ constructive notice * * * to a purchaser or incumbrancer of the property affected thereby.” (Code Civ. Proc. § 1671.) It was not effective against the infants who acquired title by inheritance.
Section 1632 of the Code of Civil Procedure, in defining the effect of a conveyance upon a foreclosure sale, provides that such conveyance is a bar against each party to the action who was duly summoned and every person claiming under him “by title accruing after the filing of the notice of the pendency of the action.” The authority for filing the notice is section 1670 of the Code of Civil Procedure, and its effect is prescribed in the succeeding section, as
. In any event, the plaintiff deemed it wise to make them parties defendant and obtained a judgment in terms extinguishing their interest in the premises, and he should not now be heard to claim that they are not necessary parties. If he was satisfied that it was not essential to make them parties, their names should be formally stricken from the record. Otherwise, he has a judgment cutting off their interest and upon the assumption that they have been properly made defendants.
Section 471 of the Code of Civil Procedure permits the appointment of a guardian ad litem upon the application of the infant defendant, made “ within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section four hundred and forty-one of this act.” “ Where an infant defendant resides out of the State” the court may designate a person to act in his behalf unless he or some one in his behalf procures such a guardian to be appointed, and notice in the manner prescribed in the order must be given the infant before this alternative designation becomes effective. (§ 473.) The language of this section implies that the infant must be made a party defendant by regular process before the court may grant the order of designation. The order is granted only where there is an infant already made defendant and residing out of the State or temporarily absent therefrom. In the present case an order continuing' the action against these infants has been granted, but without notice to them or any one interested in their behalf. Service of summons is the method prescribed by the Code of Civil Procedure for making a party defendant in an action (§ 416) unless he voluntarily appears (§ 424), which, of course, does not apply to an infant who cannot act “ voluntarily ” in a judicial proceeding.
Jurisdiction of the infant by the service of summons by one of the methods prescribed in the Code of Civil Procedure is necessary before the court can properly appoint a guardian ad litem for him in the action. (Ingersoll v. Mangam, 84 N. Y. 622; Smith v. Reid, 134 id. 568, 571 et seq.; Van Williams v. Elias, 106 App. Div. 288, 294 et seq.; Crouter v. Crouter, 133 N. Y. 55; Darrow v. Calkins, 154 id. 503, 513; 1 Abb. Pr. [Alden, 2d ed.] 834.)
We are cited to two or three authorities which, it is claimed, hold that service of summons on a non-resident infant is not a prerequisite to the appointment of a guardian ad litem for such infant.
In Gotendorf v. Goldschmidt (83 N. Y. 110) the action was partition and several of the defendants were infants residing in Germany and no summons was served upon them. The purchaser refused to take the deed for this reason, and an action was commenced to compel him to accept, and the court held that his objection was untenable, and the agreement to purchase was enforced against him. The court, however, placed its decision upon the ground that in a partition action as the law then existed the Revised Statutes
This distinction is further illustrated in O'Donaghue v. Smith (184 N. Y. 365) where the validity of a judgment obtained in an action of partition in'1870 was attacked because of alleged defective service of the summons on an infant heir at law. The infant was under fourteen years of age and attending the Academy of Visitation in the State of Virginia. The summons was personally served on the infant in that State and upon Mother Borgie with whom the infant resided, as the affidavit of service stated. The mother of the infant, with whom she resided when not in school, upon her own petition was appointed the guardian ad litem of the infant and appeared and answered by attorney. By the Bevised Statutes an action of partition was commenced by petition and notice, and service on a non-resident party could be made by publication, or the petition and notice could be served personally without the State “forty days previous to its presentation without publishing the same.” While the manner of commencing the action by the Code of Procedure then in force was by summons and complaint instead of by petition and notice, the mode of service in partition remained as provided in the Bevised Statutes, and the court, therefore, held the service sufficient.
It will be observed that the whole subject is one governed by~ statute, but there has been at no time, so far as I have been able to ascertain, any authority for making an infant a party defendant or for appointing a guardian ad litem to appear for him until he has received notice in some form so that he may be heard upon the
•As already mentioned, in the present case there was no service of the summons either personally or by publication upon the infants or upon the uncle in Connecticut with whom they resided, and no notice was given to any of them of the application for the appointment of the guardian ad litem, and for these omissions I think the sale should be set aside.
There was a deficiency on the mortgage sale of more than $1,000, for the payment of which the defendant Pooley was liable. He attended and objected to the sale because the infants were not properly brought in as defendants and declined to bid. His interest is sufficient to authorize him to apply to set aside the sale.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.