
    Albert M. Crouter, Resp’t, v. Annie E. Crouter et al., Def’ts. Asher Weinstein et al., Purchasers, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. PABTITION—JTJRISBICTION—GUARDIAN AD LITEM.
    Where, in an action of partition, an order appointing a guardian ad litem for an infant defendant is entered before the expiration of six weeks, after personal service without the state, the court does not acquire jurisdiction. t.
    2. Same—Pubohaseb—Merchantable title.
    Whether such an order is void or voidable, a purchaser having a right, to a title free' from reasonable doubt, will not be compelled to take property sold in an action where such a defect exists.
    Appeal from order directing purchasers to complete a purchase made at a partition sale.
    
      H. A. Forster and Eugene Smith, for app’lts; K H. Arnoux, for resp’t; Theron L. Carman, guardian ad litem.
    
   Van Brunt, P. J.

The grounds of the objection to the title in question were, first, that the affidavit upon which the order of publication was granted was not sufficient to give the court jurisdiction, and second, that the entry of the order appointing the guardian ad litem for the infant defendants before the expiration, of six weeks after personal service without the state was a nullity,, and that the court for that reason did not acquire jurisdiction over the infant defendants"; and that the guardian’s bond was not in proper form to the People of' the .state of New York.

It will only be necessary in the disposition of this appeal to consider the point as to the entry of the order appointing the guardian ad litem before the'service of the summons had-been completed. It appears that the infant defendants were personally served with the-summons, complaint, order of publication and notice on October-31 and November 1, 1890, in New Jersey, and that the order appointing the guardian ad litem was made on the' 8th of December,, much less than six weeks from the date of the service without the state. •

Section 440 of the Code requires a summons to be served, under an order for service by publication, by publication in two newspapers not less than once a week for six successive weeks, or -at the option of the plaintiff, by service of the summons and of a copy of the complaint and order without the state upon the defendant personally. And § 441 provides that for the purpose of reckoning the time within which the defendant must appear or ■answer, service by publication is complete upon the day of the last publication pursuant to the order, and service without the state is complete after the expiration of a time equal to "that prescribed for publication.

Therefore the service became complete upon the infant defendants six weeks after the 31st of October and the 1st of ¡November, 1890.

Section 471 of the Code provides that the infant defendant must appear by guardian, who must be a competent and responsible person appointed upon the application of the infant if he is of the age of fourteen or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in § 441, or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant.

It is well established that the jurisdiction of the court over infants depends upon the service of process upon those infants. Therefore, the jurisdiction of the court over the infants in question did not exist until the summons had been completely served upon them, which the Code says is six weeks after the publication or "personal service out of the state. The guardian in question was appointed long before this period had expired. Therefore, the ■court had ho jurisdiction of the infants at the time of such •appointment.

It may be true that that jurisdiction was acquired when the service became complete by expiration of time. But that jurisdiction subsequently acquired could not breathe life into acts done prior to the acquirement of any authority to act

The claim that the'limitations in the Code were simply for the purpose of reckoning the time within which the defendant must appear or answer, and that the party is served upon the day of the first publication, but only for the purpose of answering he is not completely served until the six weeks have expired, cannot prevail, because, as already suggested, jurisdiction is not acquired until everything has occurred which is necessary to constitute ■complete service; and by § 471 the fact that in case of service by publication there is progression in the service is recognized, 'because it speaks of application being made 'within twenty days ■after personal service of the summons, or after service thereof is complete. A personal service under an order of publication out of the state is no more a complete service at any time before these six weeks have expired than is a service by publication in newspapers a complete service after the first publication. The two are placed upon precisely the same footing. Complete publication, if publication in a newspaper is ordered, must occur before the service is complete, and in the case of personal service out of the state six weeks must elapse before the service is complete. " As has been already stated, as the court only acquires jurisdiction by a complete service, the appointment of the. guardian was premature.

In the disposition of this appeal it is not necessary to consider the question as to whether this fact renders the judgment void or simply voidable. It is urged upon the part of the respondents that this was a mere irregularity which was cured by the proceedings in partition and the final judgment and order confirming the sale, and if that is not true, it is amendable. But the cases of Me-Murray v. McMurray, 66 N. Y., 175, and Croghan v. Livingston, 17 id., 218, cited by the respondents, show that this contention is not true, and that the most that can be said is that it is possible that the judgment may not be absolutely void but simply voidable. But if voidable, what right has the court to compel the appellants to take this title? And if amendable, what right-has the court to-insist that they shall complete their purchases, no amendment being had. The respondents come into court claiming their proceedings to be regular, and ask the appellants to take their title; and then say even if the court should be of the opinion that their proceedings were irregular, yet as they are amendable the appellants should be compelled to take the title. We do not see upon what theory, even if these irregularities are amendable, these appellants can be compelled to run the risk of an amendment. It was the duty of the respondents, when these irregularities were pointed out, if they were amendable to have procured the amendment and then offered the title, so that the question could come up as to whether the title was good or not. But with these irregularities, if they are only such, upon the record without amendment the court is asked to make an order compelling these appellants to complete, thus throwing upon them the risk of having the title, perfected and the irregularities cured.

It is well established that on judicial sales the purchaser is entitled to have a title free from reasonable doubt. Can it be said that a title is free from reasonable doubt which requires amendment of proceedings to make it perfect, such amendment never-having been made?

It is true that the respondents offer in their points to have the-proceedings amended in the particulars to which attention hasbeeen called.

But it seems to be too late upon an appeal to the general term, to make an offer of that description. If the offer had been made in the court below, the court might have allowed the matter to, stand over, although this would be of doubtful propriety, and after the amendments were made and the title perfected compelled the purchaser to take. But they did not do that. They have insisted upon their legal right to compel these appellants to take-title notwithstanding these irregularities which, perchance, thécourt might refuse ever to cure.

The order should be reversed and the motion denied, with ten dollars costs and disbursements of this appeal and ten dollars costs-of the motion below.

O’Brien, J.

The premature order appointing guardian was an irregularity only, and could have been cured by amendment had the plaintiff, when his attention was called to it, made a motion to that end, or had the order amending it been entered on motion to compel purchaser to take. As the record stands the irregularity thus exists, and I, therefore, concur in result.  