Ronan v. First Nat. Bank of Ariz.

• Decision Date: 10 January 1962
• Docket Number: No. 6989,6989
• Citation: 367 P.2d 950,90 Ariz. 341
• Parties: Charles N. RONAN, as Guardian ad litem for Peter Robert Makaus, Caroline Veronica Makaus, Matthew Joseph Makaus, Jr. and Mary Virginia Makaus, Appellant, v. FIRST NATIONAL BANK OF ARIZONA, Phoenix, Trustee; Caroline G. Block; Gladys M. Makaus; and Matthew Makaus, Appellees.
• Court: Arizona Supreme Court

Page 950

367 P.2d 950

90 Ariz. 341

Charles N. RONAN, as Guardian ad litem for Peter Robert Makaus, Caroline Veronica Makaus, Matthew Joseph Makaus, Jr. and Mary Virginia Makaus, Appellant, v. FIRST NATIONAL BANK OF ARIZONA, Phoenix, Trustee; Caroline G. Block; Gladys M. Makaus; and Matthew Makaus, Appellees.

No. 6989.

Supreme Court of Arizona, In Banc.

Jan. 10, 1962.

Clares N. Ronan, Scottsdale, in pro. per.

Fennemore, Craig, Allen & McClennen, Phoenix, for appellee, First Nat. Bank of Arizona.

James L. DeSouza, Phoenix, for appellees, Caroline G. Block, Gladys M. Makaus, and Matthew Makaus.

LOCKWOOD, Justice.

Appellee First National Bank of Arizona, as trustee (hereafter referred to as the bank), sought a declaratory judgment to determine whether it was required to deliver certain assets of a trust to appellee Caroline G. Block, one of the settlors thereof. Named as defendants were Caroline G. Block, appellees Gladys M. Makaus (also a settlor) and her husband Matthew Makaus, appellant Charles N. Ronan, 'as guardian ad litem for Peter Robert Makaus, Caroline Veronica Makaus, Matthew Joseph Makaus, Jr. and Mary Virginia Makaus,' and certain others not concerned in this appeal.

The four Makaus Children (hereafter referred to as the minors) are contingent beneficiaries under the trust entitled to receive the corpus upon its termination. The petition was filed on February 25, 1959 and on the same day Ronan was appointed guardian ad litem by order of the superior court. At the time of filing, summons was issued in the names of Caroline G. Block, Gladys M. Makaus, Matthew J. Makaus, Charles N. Ronan (without other designation), and the others above mentioned, but the minors were not included. Likewise copies of the summons were prepared for and served only upon those named therein, and none was served upon any of the minors individually. Ronan answered as guardian ad litem, denying the right of Caroline Block to Withdarw the assets. Caroline G. Block answered and also counterclaimed, asking that the bank be ordered to deliver to her certain assets in addition to those already demanded and designated in the bank's petition. Gladys and Matthew Makaus answered separately, admitting that Caroline Block was entitled to withdraw the assets, and Charles N. Ronan as guardian ad litem for the minors answered, contesting Caroline Block's claims. Judgment on the pleadings in favor of Caroline G. Block, on her answer and counterclaim and for Gladys and Matthew Makaus on their answers, was rendered directing the bank to administer the trust substantially in compliance with Caroline Block's requests. From this judgment Charles N. Ronan as guardian ad litem appeals.

The bank moved to dismiss the appeal, which motion this court took under advisement pending submission of the appeal on its merits. In its motion to dismiss, the bank points out that Rule 4 (16 A.R.S. Rules of Civil Procedure (1956) requires that a minor must be served in the same manner as an adult, and that a minor under the age of sixteen must also be served by service upon a parent or guardian. Two of the minors here involved were under sixteen at the inception of the action, and it is admitted that none was served personally, although there was personal service on Ronan and Matthew Makaus. The bank therefore asserts that there was failure to comply with Rule 4, insofar as all the minors are concerned. Since service of process is jurisdictional, the bank maintains, the court acquired no jurisdiction over the minors, its purported appointment of Ronan as guardian ad litem was of no effect and hence Ronan who had no personal interest in the subject matter, was powerless to act on behalf of the minors.

Although he did not raise the question in the trial court, Ronan now agrees with the bank that the trial court acquired no jurisdiction over the minors, for lack of service, but urges that he may attack the judgment of the trial court here by raising the question of its jurisdiction. Appellees Block and Makaus claim the trial court had jurisdiction over the minors, and in any event, Ronan, not having raised the question of jurisdiction in the trial court, cannot now do so. Block and Makaus also argue that even if the trial court lacked jurisdiction over the minors, the purported appointment of a guardian ad litem was invalid, and therefore Ronan cannot maintain the appeal, either as such guardian or individually.

We do not believe that Ronan is to be deprived of the opportunity to maintain this appeal because the trial court may not have had jurisdiction to appoint him guardian ad litem. The record shows that he was appointed guardian by the court and that judgment was entered against him as such. He now seeks to set the appointment and judgment aside for lack of jurisdiction. This court has appellate jurisdiction to determine whether the trial court had original jurisdiction, ¹ therefore we will not dismiss an appeal when the only basis for such dismissal would be the very jurisdictional question raised by the appellant. To hold otherwise would be drastically to limit the power of the appellate court and deprive the defendant of the opportunity to attack the jurisdiction of the trial court. The motion to dismiss is denied.

We hold that the guardian ad litem's failure to raise the jurisdictional point below did not amount to a waiver of his right to raise it here, on the minors behalf. We believe the basis for this ruling is well stated in Haden v. Eaves, 55 N.M. 40, 43, 226 P.2d 457, 459 (1950):

'Upon the question whether an infant party may complain in the appellate court of errors not objected to in the trial court, the authorities are not in accord. On the theory that the law jealously guards the rights of infants, and that they are wards of the court and are not to be prejudiced by any act or default of their guardian ad litem, the court being bound to protect their interest notwithstanding the failure of their guardian to do so, the better rule seems to be that the appellate court will protect the rights of infants, although no objection is made or exception is taken in the trial court.' ²

We next consider whether there was substantial compliance with Rule 4 of the Rules of Civil Procedure, which states:

4(b) 'The summons shall * * * contain * * * the names of the parties, [and] be directed to the defendant * * *. A copy of the complaint and summons shall be prepared for each defendant.'

4(d) 'The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

1. 'Upon an individual * * * by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *.'

2. 'Upon a minor under the age of sixteen years, by service in the manner set forth in paragraph 1 of this subdivision upon the minor and upon his father, mother or guardian, within this state, * * *.' (Emphasis added.)

Appellees Block and Makaus admit that the minors were not named in the summons and that copies were not prepared for them; however they maintain that Rule 4 was substantially complied with by service upon the minors' father, Matthew Makaus. In support of this contention, they refer us to two cases from other jurisdictions in which it was held that service upon the parent was service upon the minor. ³ We believe that these cases are not in point as in both the minors were intended to be served by leaving the summons with the parent, the minors were named in the summons, and the return showed that they had been served. In the instant case the record shows that Matthew Makaus was served with two copies of the summons and petition, one each for his wife and himself, both of whom were named as defendants therein. The return did not state that the minors were served nor meant to be served. The rule requires service of process in order to notify all those interested of an impending litigation, and there is nothing in the record in this case indicating that the minors were ever so notified and given the opportunity to protect their interest. In Sleeper v. Killion, 166 Iowa 205, 214, 147 N.W. 314, 317, (1914), a case in which the parents were served on behalf of the minors in accordance with the statute but the minors were named only in the petition; the court said:

'All these cases * * * [holding such service void] are predicated on the thought that no one can be deprived of life, liberty, or property without due process of law; that notice is essential to due process of law; that in the citation, summons, or process of any kind requiring a person to appear in a court of record, to answer to a charge made against him, he must have notice of the proceedings. The notice must be addressed to him by name. He must be distinctly told in the notice that he is required to appear, and the consequences that will follow his failure to respond. It is not a sufficient answer to say that no prejudice resulted to the defendant from the failure to insert his name in the notice in this particular instance. There is danger in permitting courts to assume jurisdiction to determine and dispose of the rights of parties, upon notice that is not addressed to the party, and in which he is not distinctly informed that his presence is required to protect his interests.'

It is one thing to say that the rule was substantially complied with where the only deviation was a failure to name the court, ⁴ or the infant as plaintiff, ⁵ or to say that process directed at the minors may be served upon a parent, ⁶ and quite another thing to say that service upon parents in their own behalf, of the summons which were directed only to the parents, could satisfy the requirements of Rule 4. We hold, therefore, that the four minors were not personally served in accordance with the rule. ⁷

Block and Makaus...