42 Cal. 484 | Cal. | 1871
Lead Opinion
The facts, or most of them, out of which the present controversy arises, may be seen in the report of the case of
It appears, from the findings filed in this action, that no summons was personally served upon the infant defendants in that action, but that, without such service being made or attempted, their father, F. C. Smith, who was himself a defendant, and was at the time their general guardian, duly appointed, qualified, and acting, “ appeared in said action, and by attorney, for himself and them, defended the same; that said attorney, on behalf of said infants and in their names, and F. C. Smith as their guardian, demurred to the complaint therein,” etc.
It is insisted by counsel that F. C. Smith, as such general guardian, had no authority to appear for his wards in that action, because no service of summons had been made upon them, or either of them; and that, in the absence of such service, the appearance so entered was of no legal import whatever, and, as a consequence, that the decree subsequently rendered therein was absolutely void, to all intents and purposes, as to them.
The question thus presented, though jurisdictional in its consequences, is purely one of practice. It is a question of correct or incorrect procedure in cases in which infant defendants are impleaded, or attempted to be impleaded, in Courts of justice. It is exactly the question which arose and was determined here in the case of Gronfier v. Puymirol, 19 Cal. 629, and ever since the decision there rendered, it has been regarded as definitively settled in the Courts of this
It is believed that the authority of that case, upon the point involved, has never been doubted or called in question until now. The construction which it gave to the statute, in the respect now under consideration, has since then been steadily adhered to by the Courts—it has been relied upon by the profession in the examination of titles, and acted upon in the purchase and sale of real estate during the intervening period, now some eight years—and property interests of immense magnitude must be imperiled if it is to be overturned now.
Under such circumstances it has arisen to the importance of a rule of property, and even though it were conclusively shown to have been, as an exposition of the statute it attempted to construe, incorrect at the outset, I think it, nevertheless, our duty to maintain it now, and not permit it to be disturbed. If its operation for eight years in practice has indeed shown it to have unnecessarily facilitated the
The Legislature can make such change, if it be desirable, without the disturbance of titles and the destruction of individual rights, which invariably follow such a change when brought about by a judicial decision. When a rule, by which the title to real property is to be determined, has become established by positive law or by deliberate judicial decision, its inherent correctness or incorrectness, its justice or injustice, in the abstract, are of far less importance than that it should, itself, be constant and invariable. We should not disturb such a rule of property here, even though we be satisfied that we could substitute another preferable in theory, or better calculated by its operation to promote the purposes of justice.
Entertaining these views, I am of the opinion that the judgment of the Court below should be affirmed, and it is so ordered.
Dissenting Opinion
The defendant McDonald deraigns title to the demanded premises through a judicial sale in the case of Augusta S. Smith v. F. C. Smith et als., and a Sheriff's deed in pursuance thereof. The present plaintiffs were named as defendants in that action, and were minors at the date of the decree therein. Eo summons, however, was ever served upon them, and being minors they were incapable of binding themselves by a voluntary appearance, had they attempted to do so. But it appears from the findings that their father (who was also a defendant, and appeared to the action) was their general statutory guardian, duly appointed and qualified, and that he employed counsel to represent them in said action; that the counsel so employed filed, in their names, a demurrer to the complaint; and the de
Section nine of the code provides that “ when an infant is a party, he shall appear by guardian who may be appointed by the Court in which the action is prosecuted, or by a Judge thereof, or a County Judge;” and the next section provides on whose motion the guardian may be appointed. Section twenty-nine prescribes the method of serving the summons on an infant defendant, to wit: If he be under the age of fourteen years, by delivering a copy “to such minor personally, and also to his father, mother, guardian, or if there be none within the State, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed;” and “in all other cases to the defendant personally.” If these provisions were alone to be appealed to, it would be plain enough, that the Court could acquire no jurisdiction of the person of an infant defendant without a personal service of the summons. The Court has no power, on the motion of any one else, to appoint a guardian ad litem, for a minor above the age of fourteen, until after service on the minor, as is apparent from section ten, which authorizes him, if above the age of fourteen, to make his-application for the appointment of the guardian ad litem,, at any time within ten days after the service of the summons; and until he shall have
In Gronfier v. Puymirol, 19 Cal. 629, a general guardian appeared and defended the action for his ward, on whom there had been no service of process, and without having been appointed guardian ad litem by the Court in which the action was pending; and this Court held the proceedings to be valid, and that the ward was bound by the judgment. The decision is founded on the provision of section sixteen of the Act above quoted, which was held to authorize an appearance for the ward by the general guardian, when no guardian ad litem had been appointed. But the attention of the Court does not appear to have been called to the provisions of the code requiring a personal service on the minor, as affecting the question of jurisdiction. If service on the minor be shown, it cannot be doubted that the general guardian may appear for and represent him in the action, unless another be specially appointed for that purpose. But, as already stated, one of the principal ends to be subserved in requiring service on the minor, is to bring the matter to the attention of his friends, relatives, or custodian, so that they may have the opportunity to show that the general guardian is not a fit and proper person to represent him in the litigation. This object might, and in many cases would be wholly defeated if no service on the minor was required before the general guardian was authorized to appear for him. After service on the minor, if no one appears within the proper time to apply for the appointment of a guardian ad litem, the presumption is that there is no objection to an appearance on his behalf by the general guardian. But, as I construe these provisions, and in view of the policy which obviously dictated them, the general guardian has no au
I am not, however, to be understood as holding that if a minor be a non-resident, so that he cannot be personally served, the service may not in that case be made by publication of summons, as in other cases in which the service by publication is substituted for personal service. My conclusion on this branch of the case is that the plaintiffs are not bound by the decree in the case of Augusta S. Smith and F. C. Smith et als., because they were not served with the summons.
But the defendants claim, on the authority of Hahn v. Kelly, 34 Cal. 391, that all the presumptions are in support of the decree, and that in a collateral action it cannot be shown by proof dehors the record, that there was no service of summons on the present plaintiffs. The record, however, in that action is not before us on appeal. The Court finds it as a fact that no summons issued and none was served on the plaintiffs, and, for aught that appears, the fact may have appeared on the face of the record itself. This is an appeal on the judgment roll alone, and we must presume that there was sufficient competent "evidence to support the findings. The decree against the plaintiffs was absolutely void, and not merely voidable as to them, and their acquiescence in it, for a time after reaching their majority, does not estop them. Nor is their claim barred by the Statute of Limitations, upon the facts found by the Court.
I think, therefore, that the judgment should be reversed, and cause remanded for a new trial.