Foster v. Hammond

Rtaít, 0; J. The apipellant is an infant. - The court below made an order appointing a guardian ad litem for him. And the respondent objects that this appeal is prosecuted, not by the guardian ad litem, but by the infant’s general guardian. The cause affects the inheritance of the infant, and the appeal is his. It may have been the duty of the guardian ad litem, assuming to act in that capacity, to prosecute the appeal for the infant.But, for reasons which will be presently seen, if not for others of broader application, his failure to do so cannot deprive the infant of the right of appeal. In this case, it was competent [188] and proper for the general guardian to act for the infant in bringing this record to this court. The appellant is a nonresident; and the proceeding to bring him into court was taken under sec. 11, ch. 142, R. S. His counsel now contends that this was a mistake, and that the proceeding should have been under sec. 10, ch. 124. The learned counsel argues that the latter section, having been originally passed after the former, and containing no exception of actions of partition,,operates to repeal the former by construction. We cannot agrqe with him. Both sections were reenacted together in the revision of 1858, and the general provision in ch. 124, and the particular provision for actions of partition in ch. 142, may well stand together, as was the manifest intention of the legislature. Unlike sec. 10, ch. 124, sec. 11, ch. 142, does not provide for the service of a summons or complaint out of the state, on nonresident defendants. In actions of partition, service out of the state, on nonresident defendants, of the summons and complaint is unauthorized by the statute, and therefore extra judicium. Instead of service of the summons and complaint, the statute provides for service out of the state, on nonresident defendants, of an order in the cause, requiring the parties to appear and answer by a day specified in the order. This is the mode, and the only mode, provided in such cases for service on defendants out of the state, and the order is therefore jurisdictional. A failure to serve the order prescribed by the statute, is a failure of jurisdiction. And a strict compliance with this statute is requisite to jurisdiction. Kane v. Canal Co., 15 Wis., 179. The order made in this cause, and served on the appellant in another state, specifies no day for him to appear and answer. It directs him to appear and answer in twenty days after service on him of the order and of the summons and complaint. This not only fails to specify a day for appearance and answer, that is, to name a day certain, but expressly makes the day for appearance and answer uncertain, depending on a count of days [189] from another day uncertain. This is not a compliance with the statute, and is a fatal defect in the order. The language of the statute is very plain. Not only does sec; 11 require the order to specify a day, but sec. 12 authorizes the court to proceed against nonresident defendants served with the order, as upon a default, only upon their failure to appear and answer by the day mentioned in the order. The statute is peremptory ; and the failure to follow it is fatal to the jurisdiction of the court below over the appellant. It is said that the difference is immaterial; that one way is as favorable to nonresident defendants as the other. Perhaps so; but ita lex scripta est. We cannot sustain the statutory jurisdiction of the court below over the appellant, because the proceeding which was taken to acquire it, out of the statute, may be as good as the proceeding prescribed in the statute, which was not taken. There is another fatal defect in the order, which it is proper to notice. The statute requires the order to contain a sufficient description of the premises of which partition is sought. Sufficient for what ? For the purpose of the order; sufficient to notify the nonresident defendant served, of the premises of which partition is sought, so that he may know whether he claims any interest in them. The description of the premises in the order in this case is in itself uncertain. But it is said that it may be made certain by the record of a deed in the register’s office, to which it refers: id certum est guod cerium reddi potest. We cannot hold that it is the intention of the statute that a nonresident defendant must make a journey to the state, or employ an agent in it, in order to certify himself whether he has an interest in the premises or not. The description must be sufficient on the face of the order. That is the statute. It was objected to the order that it does not give adequate notice to a nonresident defendant. It certainly seems reasonable that an_ infant living in another state should have longer [190] notice than the law gives to an adult defendant living within the shadow of the court house. But the statute leaves that to the discretion of the circuit court, which we can review- only in case of abuse. On the grounds stated, there was a failure in the court below to acquire jurisdiction over the appellant; and all subsequent proceedings against him, including the appointment of a guardian ad litem, were coram non judice. The judgment of the court below must therefore be reversed.- By the Court. —Judgment reversed.