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Moulton v. Moulton.

of in Rogers v. McLean, 31 Barb. 304, also approved of by the court of appeals in same case, 34 N. Y. 536, 542. To the same effect, see Jennings v. Jennings, 2 Abb. Pr. 6; Disbrow d. Folger, 5 Abb. Pr. 54; Wellington d. Claason, 9 Abb. Pr. 177; and in Shriver v. Schriver, 12 N. Y. Weekly Dig. 328. The first objection was, that the “judgment and all proceedings in the action were invalid and void by reason of the infant defendant, Bertha Ball, never having been served with the summons and complaint in this action." It was held the appointment of guardian ad litem, for a non-resident defendant over fourteen years of age, upon the petition of such infant, together with an appearance and answer by said guardian, is sufficient to give jurisdiction to the court without service of a summons upon the infant. In this same case, on appeal to the court of appeals (86 N. Y. 580), the chief justice says: “ Most of the objections to the title set up by the purchaser have been answered by the learned general term,” thus affirming the decision of the court below in respect to the foregoing objection. In Thistle v. Thistle (5 N. Y. Civ. Pro. 43), decided in February, 1884, DONOHUE, J., says, " The sole object of the service is to procure the ap

“ pearance of the party. Where, as in this case, the infant has, on the application of his own voluntary representation, appeared, that is sufficient, the intent of the Code being that the infant should have his day in court, and the infant has had it here. How the service was made is of no mportance, as the appearance is not dependent on that.” The motion to compel the purchasers to complete, and accept the deed tendered them should have been granted.

The sworn statement of the infant cannot be challenged. Syracuse Savings Bank v. Burton, 6 N. Y. Civ. Pro. 216, 221. The judgment is prima facie evidence of the jurisdiction, and recitals may prove jurisdiction applicable to infants as well as adults. Bosworth v. Van

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dewalker, 53 N. Y. 597; Read v. Read, 7 N. Y. Weekly Dig. 244; Barnard v. Heydrick, 49 Barb. 62, 72.

T. S. Ormiston (Ormiston & Dorset, attorneys), for purchasers, respondents.

Francis Joseph Moulton, a necessary infant defendant, was not served with the summons. This was admitted on the argument below. It is, however, evident on the record. Service of a summons is a question of law as well as of fact; or rather, it is a conclusion of law, to be determined only after the facts purporting to make service are known. The infant's statement is a bare conclusion, and must be considered in the light of other circumstances,—i. e., that he makes it in Switzerland three days only after he says service occurred, a physical impossibility, except under an order for personal service without the State. The statement cannot be viewed as an admission of service, because it does not state the place of service, and because the petitioner is not an adult. Code Civ. Pro. $ 434. The fact undoubtedly is that, by mail, he was apprised of the suit, and was furnished with the petition, and, three days later, verified it. He is, therefore, not bound by the judgment, and the title, through the referee's deed, is defective. Actions for partition are now controlled by Code Civ. Pro. $ 1532–1595. Section 1535 provides that a guardian ad litem for an infant party can be appointed only by the court. Sections 1577 and 1557 provide that a final judgment in these actions is binding and conclusive upon the plaintiff; each defendant upon whom the summons was served, either personally or without the State, or by publication, pursuant to an order obtained for that purpose ; and the legal representatives of each party. None other of those sections bears at all upon the point in question.

By the above sections jurisdiction is obtained over, and final judgment is conclusive upon only those served with the summons, and the legal representatives of those


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served. But by section 424 a voluntary general appearance of a defendant is equivalent to personal service of the summons upon him. Can the petition of the infant herein be construed to be a voluntary general appearance? The court of appeals, in Ingersoll v. Mangam, 1 N. Y. Civ. Pro. 151, decides this in the negative. Judge ANDREWS, in an opinion in which all concur (RAPALLO, J, absent), says (p. 156), “The appearance by the guardian was not an appearance by the infant, and was not within section 424. The infant was incapable of consenting to such appearance, and the gurdian could not consent to the exercise of jurisdiction over him by an appearance not preceded by the service of process.” Without service of the summons in some of the forms prescribed in Code of Civil Procedure, or advantage taken of the methods, if applicable to the facts of this case set forth in section 473 of this Code, jurisdiction has not been obtained over the infant. In Walter v. DeGraff, Judge O’GORMAN distinctly declared this doctrine as applicable even to a partition suit. See his opinion in the Daily Register, October 24, 1887; S. C., 19 Abb. N. C. 406; 11 N. Y. St. Rep. 274. There has been no doubt of the necessity in all cases save partition suits. Ingersoll v. Mangam, 1 N. Y. Civ. Pro. 151. This case and Gotendorf v. Goldschmidt (83 N. Y. 110), clearly show the reason for the different rule existing in partition proceedings. These were formerly controlled

. by the Revised Statutes (part III. chap. V. title 3, 6th ed. p. 582), under which proceedings were instituted by petition, not a summons; and jurisdiction over infants was acquired by the appointment of a guardian, or notice to the infant or his general guardian. By section 448 of the Old Code, these provisions of the R. S. controlling partition were made applicable to actions for partition under that Code, so far as the same could be applied to the substance and subject matter of the action without regard to form.

And substantially the same procedure would in a certain specified case be still valid under

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section 443 of our present Code, which was not adopted, however, herein. But these provisions of the R. S. were repealed by Laws of 1880, chap. 245, and all partition suits instituted after Sept. 1, 1880, are governed exclusively by the Code of Civil Procedure. None of the cases in the books uphold the jurisdiction of the courts over infants not served with the summons arose under the new provisions, with the possible exception of the special term case of Thistle v. Thistle, 5 N. Y. Civ. Pro. 43. In the case specially relied on by the appellant, Shriver v. Shriver, 12 Weekly Dig. 328, the petition of the infant for a guardian ad litem (See Appeal Book 21, of 1881, No. 329), was verified April 30, 1880, and while the general term, under the authority of Gottendorf v. Goldschmidt, held that the court had obtained jurisdiction, the court of appeals (86 N. Y. 580) affirmed the order relieving the purchaser for another reason, without considering this point. In Thistle v. Thistle (5 N. Y. Civ. Pro. 43), the same learned justice who made the order appealed from herein, held that how service was made under section 440 of the Code of Civil Procedure is of no importance, as the appearance is not dependent on that. Service was claimed to have been made, under an order for publication, and the correctness of the above decision is not necessarily involved herein.

Brady, J.—The respondents purchased at a sale, made pursuant to the judgment in this action, which was one for the partition of lands, but refused to complete, for two reasons. The first* was that Francis J. Moulton, an infant over nineteen years of age, who was a necessary party, and temporarily at school in Berne, Switzerland, on being

* The first objection, as stated in the written reason, for refusing to take title filed by the purchasers with the referee to sell, was that “it is not shown that the court obtained jurisdiction in this action over the defendant Francis Joseph Moulton so as to bind him by the judgment herein."

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served with a summons made application to this court, in writing, for the appointment of a guardian to protect his interests.

In his affidavit it was stated that he had been served with a summons, that his father was dead, and that he had no testamentary guardian and no guardian ad litem, and asked to have his uncle appointed guardian ad litem, which was done.

By section 426 of the Code, provision is made for the personal service of a summons upon a defendant if an infant under the age of fourteen years, and it is declared that it must be made by delivering a copy to him and also to his

a father, mother or guardian, or, if there be none within the State, to the person having the care and control of him or with whom he resides, or in whose service he is em

ployed. ["] By section 427 it is provided that when the defend

ant is an infant of the age of fourteen years or upward, the court may, in its discretion, with or without application therefor and in the defendant's interest, make an order requiring a copy of the summons to be also delivered in behalf of the defendant to a person designated in the order, and that the service of the summons shall not be deemed complete until it is so delivered.

It is true that this section relates as well to a defendant who by reason of habitual drunkenness or for any other cause is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, and has relation, therefore, to the second subdivision of section 426, to which reference has been made, and which provides for service of the summons upon a person judicially declared to be incompetent to manage his own affairs in consequence of lunacy,

&c. [?] It thus appears that when the infant is fourteen

years and upwards, the service must be made as indicated upon the infant and some person to be designated

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