171 P. 374 | Nev. | 1918
By the Court,
This is an original proceeding in certiorari to review an order of the Second judicial district court of the State of Nevada, made sua sponte, appointing a guardian ad litem for an insane defendant in a divorce suit, it being the contention of the petitioner that in making the appointment the court exceeded its jurisdiction.
The statute under which the court acted in making the appointment of a guardian ad litem is section 4992, Revised Laws, which reads:
"When an infant, or an insane or incompetent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending, in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him.”
It is insisted that the legislature, in enacting the section of the statute quoted, meant to legislate in behalf only of such infants and insane persons as were residents of the state, or who had property rights within the state. For the purpose of presenting an argument in support of his contention, counsel for petitioner- rears a straw man and then proceeds to demolish it. He says in his brief:
"To illustrate, no action in personam will lie against a nonresident. Now section 4902, Revised Laws, says nothing about actions in personam or in rem or quasi in rem or as to the procedure or process of serving defendants, whether sane or insane or infants or adults. Suppose, then, A should sue B upon a promissory note for $5,000 made by B in Nevada when sane, and after making the note B should go to Alabama and become a resident of Alabama, and there goes insane and is sent to an asylum. Could the court appoint a guardian ad litem for B as such defendant, and by appearance through such guardian ad litem proceed to judgment and render a judgment in personam? No. But if the court’s construction of section 4992, Revised Laws, is correct, then the court should confer upon itself jurisdiction, and enter a judgment in personam, by appointing a guardian ad litem, because the defendant was an insane defendant. The guardian ad litem represents the defendant. His appearance by demurrer or answer is the appearance of the defendant. ”
There is no parallel between the case presented to the district court and the hypothetical case presented by counsel. In the imaginary case the court would be
"A person incompetent to protect himself, from age or weakness of mind, * * * ought to come under the protection of the court.”
It is urged by appellant that certain language in the opinion in De La Montanya v. De La Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165, where there had been no personal service, wherein the authority of the trial court to enter a decree relative to alimony and the custody of the children of the parties was considered, sustains his contention. We are unable to so view the matter. About all that was decided there was that, in view of the lack of personal service of summons upon the defendant, the trial court had before it to act upon only the marriage status, and that so much of the judgment as pertained to alimony and the custody of the children was erroneous. The reasoning in that case would apply with equal force to an action to quiet title to real estate where the defendant was a nonresident and where service of summons was obtained by publication.
It is ordered that the proceedings be, and the same are hereby, dismissed.