But there may be defects in constructive service that are necessarily fatal which would not be so in case of actual service. Misnomer is one of these. Actual service on a party, although by a wrong name, is such notice as must. put him on inquiry, while constructive service of a like. kind is no notice at all. One is defective service, the other void service.1

The dividing line between defective and void service can not be accurately traced or defined. The distinction is as that between some notice and no notice at all. If the service, whether actual or constructive, is such that a party must know from it that an action has been brought against him in a designated court, this should be held to be sufficient to put him upon inquiry as to all the other facts necessary for him to know. But, as we have seen, no such easy solution of the question can be found in the decided cases.2

Like most other questions affecting the subject of jurisdiction, the rules applicable to the sufficiency of the service are often, if not generally, artificial and arbitrary. Fortunately, the courts and law-makers are showing a tendency and inclination to be governed by reason, rather than by technical and arbitrary rules. The statutes in many of the states, providing, in effect, that courts must disregard defects in the pleadings or proceedings which do not affect the substantial rights of the parties, are strong indications of this tendency. But these wholesome statutory provisions seem not to be observed by the courts, as they should be, and questions of jurisdiction, involving the validity of judgments, are too often made to turn upon purely technical rules, without reference to the real merits. of the controversy.

721; Applegate v. Lexington & Carter Co. Mining Co., 117 U. S. 255; 6 Sup. Ct. Rep. 742, 749; Stuart v. Anderson, 70 Tex. 588; 8 S. W. Rep.

296.

1 Ante, sec. 38, p. 281; Skelton v. Sackett, 91 Mo. 377; 3 S. W. Rep. 874. 1 Ante, sec. 36.

41. WAIVER OF PROCESS AND SERVICE And defects THEREIN. The question of waiver by appearance, and by failure to object to the sufficiency of process or its service at the proper time, has received attention.1

The general rule is that a general appearance to the action is a waiver of all defects in the service and of an entire want of service. In other words, an appearance is equivalent to actual service. What will amount to such an appearance has been considered.3

It must be remembered, in this connection, that persons. laboring under disabilities, minors, and insane persons, can not waive defects in process or service, by appearance or otherwise, nor can their guardians waive the same for them."

The right of a general guardian to appear for his ward has been maintained in some cases." But the great weight of authority is the other way."

There are cases in which the appearance of the guardian is binding on the ward because service of process is not necessary to give jurisdiction, as in petitions for the sale of real estate or other proceedings in rem., in which the filing of the petition or seizure of the property confers jurisdiction."

The fact that a guardian is authorized by statute to appear and defend for his ward does not affect the question.

1 Ante, secs. 13, 22, 34.

2 Ante, secs. 22, 34; Pixley v. Winchell, 7 Cowen, 366; 17 Am. Dec. 525.

3 Ante. sec. 34.

* Ante, sec. 13, p. 43; Greenman v. Harvey, 53 Ill. 387; Dickison v. Dickison, 124 Ill. 483; 16 N. E. Rep. 861; Clark v. Thompson, 47 Ill. 25; 95 Am. Dec. 457, 461, note; Fitch . Cornell, 1 Sawyer (U. S. Cir. Ct. Rep.), 156, 171.

5 Smith v. McDonald, 42 Cal. 484; Richardson v. Loupe, 80 Cal. 490; 22 Pac. Rep. 227.

610 Am. & Eng. Enc. of Law, 688.

Ante, sec. 38, p. 283; Mohr v. Manierre, 101 U. S. 420; Scarf v. Aldrich, 32 Pac. Rep. 324; Gager . Henry, 5 Sawyer (U. S. Cir. Ct.), 243; Robb v. Irwin, 15 Ohio, 689, 699; Sheldon v. Newton, 3 Ohio St. 494,

Such authority exists only after the ward has been properly served with process.1

The general rule is that a court has no jurisdiction to appoint a guardian ad litem to appear for a minor without. the service of process as required by law. And if the court has no jurisdiction to appoint the guardian, certainly the person so appointed could not, by any act on his part, give the court jurisdiction to proceed further in the action.3

It is held, however, in some cases, that where the proceeding is in equity, and the wards are served, the appearance and answer for them by their general guardian, without the appointment of a guardian ad litem, is binding, although irregular, on the ground that minor defendants are the wards of the court, and, where the fact of their minority is called to the attention of the court, their rights will be protected, and they will be bound by the proceeding.1

There is a conflict in the authorities as to the effect of an appointment, and appearance by, a guardian ad litem without service on a minor. Some of the cases hold that a judgment rendered under such an appearance is only irregular and voidable, and not void. But it is difficult to conceive of any principle upon which such a conclusion can be maintained. It is not a case of defective service, but of an entire want of service. The appearance is by one wholly unauthorized and in a case where the party is disabled either to waive the service himself or to authorize another person to do so for him. The court, not having acquired jurisdiction of the person of the defendant, has

2

1 Dickison v. Dickison, 124 Ill. 483; 16 N. E. Rep. 861.

Ingersollr. Mangam, 84 N. Y. 622; Insurance Co. v. Bangs, 103 U. S. 435; Johnston v. S. F. Sav. Union, 63 Cal. 554; Good r. Norley, 28 Ia. 188, 198.

3

Hough v. Canby, 8 Blkf. (Ind.) 301; Robbins v. Robbins, 2 Ind. 74; Abdil v, Abdil, 26 Ind. 287; Clark v. Thompson, 47 Ill. 25; 95 Am. Dec. 457, 461, note; Ingersollr. Mangam, 84 N. Y. 622.

5 McAnear v. Epperson, 54 Tex. 220; 38 Am. Rep. 625; Wheeler v Ahrenbeak, 54 Tex. 535.

no power to render judgment against him. Without an appearance, or service, the judgment would undoubtedly be void. This being so, it is rather a remarkable conclusion that a court that is without jurisdiction to take any step in the case, may appoint a guardian ad litem without authority, and with his aid render a judgment that is merely erroneous, and which, but for the interposition of such guardian, would have been void. The better rule, so far as the reason of it is concerned, is that a judgment rendered under such circumstances is wholly void. And an examination of the authorities relied upon as supporting the doctrine that such a judgment is merely erroneous will show that they are generally founded upon the fact that the proceeding is one in rem., in which the seizure of the property or a petition for its sale gives jurisdiction and not the giving of notice.'

The question must not be confused with that of the failure to appoint a guardian ad litem where there has been service, and kindred questions, which are not jurisdictional, and which do not, therefore, affect the validity of the judgment, but are mere errors and cause for direct attack. Nor with the doctrine of presumption where it does not appear that service was not made on the minor defendants, or where the recitals in the record show that service was made. In such cases, minors stand upon the same footing as adults, and may be barred from attacking the judgment collaterally. Nor with those cases above referred to, which are not adversary in their nature, and in which the filing of the necessary petition gives jurisdiction. In such cases, while notice is required by statute, the giving of such notice is not necessary to give ju

1

3

Ante, sec. 14, p. 49; sec. 38, p. 283; McAnear v. Epperson, 54 Tex. 220; 38 Am. Rep. 625; Mohr v. Manierre, 101 U. S. 420; Scarf v. Aldrich, 32 Pac. Rep. 324; Robb v. Irwin, 15 Ohio, 689, 699; Sheldon v. Newton, 3 Ohio St. 494, 502; Good v. Norley, 28 Ia. 188, 193.

2 Porter v. Robinson, 3 A. K. Marshall, 253; 13 Am. Dec. 153, 159, note.

Ante, secs. 22, 25.

risdiction, and the failure to give it is but an irregularity not affecting the validity of the judgment.'

There is a diversity of opinion upon the question whether an application by an administrator or guardian is a proceeding in rem., within the rule that notice is not necessary to give jurisdiction, but only to make it effectual.'

An attorney can not waive service upon a minor.3 The receipt of the benefits of a judgment rendered upon defective service is a waiver of such defect, but not where the judgment is void because of an entire want of notice.*

An agreement made beforehand to waive the return of service at the required time has been held to be insufficient to give the court jurisdiction."

A party summoned by a wrong name, who appears and allows judgment to be taken against him by his true name, can not afterward contest the judgment because of the defective service."

The rule is the same where the judgment is taken against a corporation or an individual by the wrong name, under which service is made."

By setting up certain objections to defective service, other objections not made are waived."

If the service is defective, merely, and not void, a failure to appear and object is a waiver, and the entry of judgment, after default, can not be resisted on that ground.' And the failure to attack a judgment, for an unreasonable

4 Sheldon v. Newton, 3 Ohio St. 494, 502.

2 See the authorities cited on both sides of the proposition in the case of Good v. Norley, 28 Ia. 188, in which the court was equally divided and the authorities cited much the same.

3 Bonnell v. Holt, 89 Ill. 71; Valentine v. Cooley, Meigs (Tenn.), 613; 33 Am. Dec. 166.

* Gay v. Grant, 101 N. C. 206; 8 S. E. Rep. 99.

5 Brown v. Carroll, 16 R. I. 604; 18 Atl. Rep. 283.

Williams v. Hitzie, 83 Ind. 303.

Young v. South Tredegar Iron Co., 1 Pickle (Tenn.), 189; 2 S. W. Rep. 202.

Feibleman v. Esmonds, 69 Tex. 334; 6 S. W. Rep. 417. 'Nashua Sav. Bank v. Lovejoy, 46 N. W. Rep. 411.