Page images

the expiration of the time limited for publication, will be hereafter considered. It has been an usual practice to enter up such judgment forthwith, on the expiration of the period mentioned in the order. In Tomlinson v. Van Vechten, however, 6 How. 199 ; 1 C. R. (N. S.) 317, it was held that the service of the summons is not complete until that time, and that the defendant has the usual period of twenty days to answer, in addition, before judgment can be taken. It remains to notice the measures which the defendant may take to set aside service of this nature, or to obtain leave to come in and defend, after judgment obtained thereon.

It will be seen that, at any time before judgment, the defendant may come in and defend, as of course ; and that he possesses the full power of doing so, and of enforcing restitution, if he prevail, (except as regards the rights of bonâ fide purchasers.) within a very extended period after its rendition, except in the single case of divorce, on proof that he has not had a full year's previous notice of such judgment; a provision which renders it highly advisable that, wherever practicable, a formal notice of judgment being entered, should be forthwith served upon him on the part of the plaintiff. Under the Code of 1849, a defendant, who had been personally served out of the State, or who had received the summons by post, was precluded from coming in to defend after judgment.See Hulbert v. The Hope Mutual Insurance Company, before cited; but this restriction no longer exists under the recent amendments.

In many cases where an order of this description is obtainable, the same state of facts will warrant an application for an attachment, (see Moore v. Thayer, above cited,) which may be made at the same time and on the same affidavits; though it by no means follows that the latter will, in all cases, be also granted--the greater stringency of that species of remedy, rendering the courts more jealous as to its exercise.

By the above section, provision is not made for the case of a defendant, whose residence cannot be ascertained on due inquiry. In Close v. Van Ilusen, 6 How. 157, it was held that under these circumstances, the plaintiff still possessed a remedy in equitable cases, under the act of April 12, Laws of 1842, p. 363, where the last known residence of the defendant was within the State ; and that such act was not inconsistent with the Code, and therefore still in force. The plaintiff, it was

held, “should present his application by petition, bringing his case within the 135th section of the Code, so far as form is concerned, and the first section of the act of 1842. The publication of the order should be in two newspapers, to be designated as most likely to give notice to the persons to be served, and for a period of three months. (Compare Code, sec. 135, with Law of 12th April, 1842, sec. 2, subd. 2.)"

The provisions of section 136, under which, in actions against several defendants, the summons may be served upon any one or more of them alone,and separate proceedings taken thereupon, against the parties so served, will be remarked; though, of course, it would be premature, at this point, to enter into the details of those proceedings. The peculiar description of process by means of which parties against whom a joint judgment has been entered without personal -service upon them, or by means of which the representatives of a deceased judgmentdebtor, may be summoned to show cause why they should not be bound by the judgment already on record, will be hereafter considered in connection with those proceedings.—See sections 375 to 378 inclusive, and Forms in Appendix.

The following are the provisions of the Code on the subject of the proof of service of summons, &c., as above :

$ 138. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, must be as follows:

1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, bis affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or bis foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited ; or,

4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit, or admission must state the time and place of the service.

It is essential that the sheriff's certificate should identify the summons and complaint served by him, as being the summons and complaint in the cause, or the service will be defective. Litchfield v. Burwell, 5 How. 341; 1 C. R. (N. S.) 42.

The sheriff's fees, in respect of service of process and papers as above, are as follows:-For service of the summons, or summons and complaint, 50 cts.; for service of notice of object of suit, 37 cts, in addition; and for his certificate of the service of


both summons and notice, one fee of 12} cts. only, in addition to those for mileage, at 6 cts. per mile for going only, to which he is entitled under the revised statutes, 2 R. S. 644. See Gallagher v. Eyan, 2 Sandf, S. C. R. 742.

The necessary particulars of the affidavit of service, when made by a person in the ordinary form, are fully prescribed by rule 90 of the supreme court; see Form in appendix. The forms of affidavits in cases of service by publication are also there given. Where the written admission of the defendant is relied upon, it would seem from Litchfield v. Burwell above cited, that it is absolutely essential that his signature to such admission, and the fact that he is the party to the cause, should be proved by independent evidence. The court will take judicial notice of the signatures of its officers, because they are such, but they cannot be presumed to know that of a party defendant who has not appeared in the cause.

The provision in sec. 139, with regard to the voluntary appearance of a defendant being equivalent to due service upon him, is one of the amendments of 1851, and is of course highly calculated to promote the convenience of suitors, though perhaps, in strictness, only declaratory of the previous law upon the subject.

The periods at which an action will be held to have been commenced, by service or delivery of process to the sheriff, and also with reference to publication, or the allowance of a provisional remedy, have already been considered. Before entering upon the general proceedings in a suit, the appointment of a guardian ad litem, and his duties, may advantageously be considered at the present juncture, as, where suit is brought in the name of an infant, such appointment must, of necessity, take place, as a preliminary to any other proceeding in the action, and, in fact, to the bringing of the action itself. The subject of a similar appointment on behalf of an infant defendant, and that of the appointment of a general guardian under the old practice, and the duties of the latter, bear so close a relation to that last proposed, that, although the former properly belongs to a later period of the action, and the latter is in strictness referable to the head of special proceedings, the present seems evidently the most convenient stage of the work for a separate consideration of these subjects, as one connected whole ; which course will accordingly be pursued in the succeeding chapter, references being made to it in the subsequent portions of the work where requisite.



upponent of a general guard- : ian; and 2. That of a guardian ad litem. The provisions of the Code itself have only reference to the latter subject; those of the rules, however, embrace both.

The questions in relation to the appointment and duties of a general guardian, depend entirely and exclusively upon the provisions of the Revised Statutes, and are in all respects governed by the old practice. Anything beyond a mere general reference to them, would therefore be clearly incompatible with the present work, and will not, accordingly, be attempted.

The appointment of a guardian of this nature, rests with the father of the infant, in the first instance; and, in default of appointment by him, with the courts. The rights of the former in this respect, are specially saved by secs. 1, 2, and 3, of title III, chap. VIII. part II. of the Revised Statutes, 2 R. S. 150, and are exercisable by deed or will. The rights and powers of a guardian so appointed are absolute, and prevail over those of the guardian in socage under the common law, as saved by secs. 5 to 7, of art. I. title I. chap. I. part. II. of the same statutes, 1 R. S. 718. The latter are in fact little better than illusory, as, under sec. 7, of that article, they are to be superseded, in all cases where a special appointment shall have taken place.

In default of nomination by the father as above, the appointment of a guardian rests with the courts, either by inherent or special authority. The inherent authority in this respect was vested in the chancellor, before the abolition of that high office, and now rests with the supreme court, as exercising its duties by substitution. The practice of the latter tribunal, in this respect, is fully defined by the recent rules, Nos. 58 to 66 inclusive, which should be carefully consulted accordingly, in connection with the works on the former practice. A special statutory authority is also exercisable by the surrogate, under title III. chap. VIII. part II. of the Revised Statutes before referred to, which title, together with the works on the practice of those tribunals, should therefore be fully looked into, though even a notice of them would be beyond the province of the present work.

The rules of the supreme court above alluded to, provide shortly as follows : The general guardian of an infant is to be appointed on petition of the infant himself, if fourteen or upwards : or if under that age, then of some relative or friend. -Rule 61. The petition must state full particulars; and the court, under rule 62, are to examine into all the circumstances, and name a proper person.

The security to be given by such guardian on his appointment, is prescribed by rule 59; and no monies arising from the sale of real estate of an infant, on mortgage or partition sale, or under a decree or judgment, except any portion of principal or income allowed for maintenance of the infant, are to be paid over to him, unless he have given sufficient security on unincumbered real property, rule 60; and a general guardian already appointed, may, under rule 58. be required to give further security in cases of this nature.

Provision is made by art. VII. title II. chap. I. part III. of the Revised Statutes, 2 R. S. 194 to 197, in relation to the sale of the real estates of infants on special application, and the practice to be adopted in this respect, the nature of the petition, the security to be given, the form of order to be made, and the proceedings thereon, will be found fully prescribed by rules 63 to 66 inclusive.

The following anonymous case is reported at 4 How. 414, with reference to the security to be given under rule 63 :

A guardian having been appointed, under rule 65, to sell a

« PreviousContinue »