Heller v. Heller

| N.Y. Sup. Ct. | Nov 15, 1851

Hand, Justice.

the summons was served on the brother of the defendant only, the service is not sufficient, and I think the court should not act upon such service, unless the irregularity is in some way waived. If she be insane, the service must be personal; and if there be a committee, also on the committee {Code, § 134). The section (409) relative to service at the residence, does not apply to the service of a summons.

Before the Code, the committee of a lunatic defendant, not having interests adverse to the lunatic, could have an order appointing the committee guardian of course. And no notice to the opposite party was necessary when the committee applied (New v. New, 6 Paige, 237; 1 Barb. Ch.Pr. 86; Shelf, on Lun. 424). Indeed, in such cases, in England, no guardian, it would seem, is now necessary (Lady Hartland v. Atcherly, 7 Bearan, 53; 2 Dan. Pr. 870), By the Code, “ when a married wroman is a party, her husband must be joined with her, except that when the action concerns her separate property, she may sue alone; and when the action is between herself and her husband, she may sue or be sued alone. But where her husband can not be joined with her as therein provided, she shall prosecute or defend by her next friend” (§ 114).

Where he is not a coplaintiff or a codefendant, it seems, she must now always, prosecute or defend by prochien ami. The alteration of § 114 by the amended Code of 1851, seems to have settled the practice which was mooted in Shore v. Shore, 2 Sandf. 715;; Tippel v. Tippel, 4 How. Pr. R. 346; and Coit agt. Coit, 6 id. 53; same case, 4 id. 232.

Where no committee had been appointed, a person of unsound mind, before the Code, defended by a guardian ad litem (Shelf, on Lun. 425; Wilson v. Grace, 14 Ves. 172; Mitf. 104; Stor. Eq. Pl. § 70; 1 Dan. Pr. 203; 1 Barb. Pr. 86). But whether notice of the application should be given to the opposite party, in such cases does not seem to be well settled. No notice is taken of the appearance of counsel for the plaintiff in the reports of the cases of Wilson vs. Grace, supra; Markle vs. Markle (4 J. C. R. 168); Att’y Gen. vs. Waddington (1 Mad. R. 321); nor in Howlett vs. Wilbraham (5 id. 423). It is said in this last case, that the plaintiff moved; but it appears by BanieVs Practice that the motion was on the part of the defendant (1 Ban. Pr. 203). But it does not appear that notice was not given in the above cases; and in Pryce vs. Page, there was an appearance for the plaintifí (1 Mad. R. 321). Where the complaint does not state that the defendant is a lunatic, I am inclined to think, notice of the application to appoint a guardian should he given, particularly in a matter so important to the parties as a suit for a divorce a vinculo. The plaintiff should have an opportunity to know why the suit is defended by a guardian instead of the party. In this case, the defendant being a feme covert, must, as we have.seen, appear by a next friend. The next friend for a feme covert plaintiff, in ordinary cases, acts by her consent (Fulton v. Rosevelt, 1 Paige, 180). But a lunatic can not consent. However, a plaintiff may apply for the appointment of a guardian ad litem for a lunatic defendant (Shelf.\ on Lun. 426); and a relative did so, in Markle vs. Markle, supra. The next friend, required by the Code, stands in the place of the former guardian ad litem, and should be appointed in the same way.

But notice of the motion should have been given, unless the complaint alleges that the defendant is insane, in which case, that should be made to appear before the motion can be granted ex parte. Order refused.