17 N.Y. 218, Croghan v. Livingston

Citation:17 N.Y. 218
Party Name:CROGHAN and others v. LIVINGSTON and others.
Case Date:March 01, 1858
Court:New York Court of Appeals

Page 218

17 N.Y. 218

CROGHAN and others


LIVINGSTON and others.

New York Court of Appeal

March 1, 1858

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[Copyrighted Material Omitted]

Page 220


Livingston Livingston, for the appellants.

Nicholas Hill, for the respondents.


The principal question in this case I deem to be, whether the mistake on the part of the guardian in not filing his bond according to the requirements of the statute, rendered the proceedings and judgment absolutely void; for if it was merely an irregularity which rendered the proceedings voidable only, the court had undoubtedly the power to allow an amendment of the proceedings by filing a bond nunc pro tunc. My examination will therefore be directed mainly to this point.

First. The Court of Chancery had original jurisdiction of an action for partition without the aid of the statute. (1 Story's Eq. Jur., § 646.) The earliest instance of a bill for partition noticed in the books was in the reign of Elizabeth, and in the report of the case it is said that the court interfered from necessity, in respect of the minority of one of the parties, because he could not be made a party to a writ of partition. (Toth. Trans., 155.)

The proceeding by suit in equity does not, therefore, depend upon the statute for jurisdiction, and in that respect is quite different from proceedings by petition, before the Code, in the common law courts. In an ordinary suit in equity, jurisdiction of the parties defendant is obtained by service and return of process upon infants as well as adults. In such cases the plaintiff is not bound in his bill to notice the fact that the defendants, some or all of them, were infants but he might frame his bill and issue his subpena the same as if all were adults. After they were brought in upon process it was necessary, both at law and in equity, that guardians

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should be appointed to appear for them, and it was erroneous for them to appear by attorney; but I apprehend that a case cannot be found holding that a judgment or decree when they appeared by attorney would be void. In a common law action the rule was in practice that an infant plaintiff should have a prochein ami and an infant defendant a guardian appointed before he was allowed to plead; yet a neglect in this respect did not render the proceedings void. The objection was not even a ground of non-suit at the trial, (2 Saund., 212 a, n. 5; 7 John. R., 373). It could only be taken advantage of by plea in abatement where an infant plaintiff pleaded without a guardian. And where judgment was against the infant it was error in fact for which the judgment would be revoked, But when the judgment was in favor of the infant it could not be reversed on account of his not having appeared by guardian. (5 Barn. & Ald., 418, Ld. En., 555; 2 Ld. Raym., 1476). The want of the appointment of a guardian did not therefore deprive the court of jurisdiction even at common law.

In Equity the infant became the ward of the court upon the service of process upon him, and the guardian ad litem was but the agent of the court to attend to his interests during the litigation. (2 Lead. Cas. in Eq., part 2, p 137,note; 3 Gilman, 435; McPherson on Infants, Appendix.) A failure therefore to provide this agent would not, it would seem, affect the jurisdiction of the court, but was a matter of error. ( Austin v. Trustees, &c., 8 Metc., 196; Smith v. Bradley, 6 Smede & Marsh., 485.) And if the failure to appoint a guardian at all did not render the proceedings...

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