
    COURT OF APPEALS.
    Horace Ingersoll, appellant, agt. John W. Mangam et al., respondents.
    
      Non-resident inf ants — actions against, how commenced,,— OodeofOvml Proced/u/re, sections 416, 434, 426, 471 — Ghiardians, how appointed,.
    
    In all actions except partition summons must be served upon non-resident infant defendants by publication. •
    A guardian can only be regularly appointed for an infant defendant after service of the summons personally; or by the substituted mode as prescribed.
    
      March, 1881.
    This was an action of foreclosure. The infant appeared by McGuire & Kuhn, attorneys, and also by Simon Dunne, as guardian ad litem,. The court, at special term (Gilbert, J.), directed the purchaser to take title. The general term (Barnard and Dykman, JJ.), on appeal by purchaser, reversed the order of the special term, and plaintiff appealed to the court of appeals.
    
      John Bradner Perry, for appellant.
    
      S. M. & D. E. Meeker, for respondents.
   Andrews, J.

The purchaser objected to the title on the ground that the summons was not served on the infant, William Hangam. The action was for the foreclosure of a mortgage executed by the father of the infant, who died prior to the commencement of the action. The infant is under fourteen years of age, and had an interest in the mortgaged premises by descent, as heir óf his father, and resided, when the action was commenced, with his mother in blew Jersey. The summons was personally served on the mother in this State, and after such service, on her application, Simon Dunne, a counselor-at-law of the city of Brooklyn, was by an order of the court appointed guardian ad litem of the infant defendant, and appeared and put in a general answer as such guardian. The summons was not served on the infant, either personally or by publication, and if such service was necessary to give the court jurisdiction to render judgment foreclosing and barring the infant’s interest in the premises, the title is defective and the purchaser should not be compelled to complete his purchase.

The Code enacts that a civil action is commenced by the service of a summons (See. 416). Where the defendant is an infant under fourteen years of age, it is declared that personal service must be made by delivering a copy of the summons within this State to the infant, and also to his father, mother or guardian, or if there is none within the State, to a person having the care or control of him, or with whom he resides, or in whose service he is employed (See. 426.)

Service on the infant alone, or on the father, mother, guardian or other person mentioned alone, does not constitute a personal service within the statute. Service oh both must concur to answer its requirement. There was, therefore, no personal service of the summons in this case, and there was no attempt to serve by publication.

The Code also provides that a voluntary general appearance of the defendant is equivalent to personal service of the summons upon .him (See. 424). It is claimed that the appearance by the guardian ad litem was a voluntary appearance by the infant within this section. An infant must appear by guardian (see. 471); but a guardian can only be regularly appointed for an intant defendant after service of the summons personally or by the substituted mode (in certain specified cases) prescribed. This is clearly implied by the language of the section last cited. It provides that the guardian is to be • appointed upon the application of the infant, if he is of the age of fourteen years and upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, if made in the other mode prescribed ; 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. The application in both cases is to be made after the personal or substituted service has been made and completed.

The order for the appointment of the guardian ad litem in this case authorized the guardian appointed to appear and defend the action in behalf of the infant; but the difficulty is that the order was unauthorized, because the court had no jurisdiction over the infant or to appoint a guardian ad litem when this order was made, by reason of the fact that the infant had not been brought in, and the action had not been commenced against him by the service of the summons, which is the statutory mode by which the court acquires jurisdiction of the person or property of an infant. The appearance by the guardian was not, therefore, an appearance by the infant, and was not within section 424. The infant was incapable of consenting to such appearance, and the guardian could not consent to the exercise of jurisdiction over him by an appearance not preceded by the service of process.

The question in this case was raised in Bosworth agt. Vandewalker (53 N. Y., 597), but was not decided, the court in that case holding that it did not appear that the infants had not been served, and in the absence of such proof, that it would be presumed that the court which rendered the judgment had jurisdiction. It was held by the chancellor, in Grant agt. Van Schoonhoven (9 Paige, 255), that to authorize the appointment of a guardian ad litem, of infant defendants under the one hundred and fortyrsixth rule in chancery, the petition must distinctly show that the infant had been served with process, or that he had been proceeded against as an absentee, and an order obtained for his appearance, under the statute. Infants are deemed to be wards of the court, and when brought in by service of process, the court will look after and protect their interests. But the court must first acquire jurisdiction before they are bound by its judgment.

There is no invariable rule defining what legal proceedings constitute due process- of law conferring jurisdiction to deal with and bind the property of infants by judicial proceedings. Uotice in some form, either actual or constructive, is essential, but the legislature may prescribe that such notice shall be given to the parent or guardian, or other person, as representing the infant, and proceedings in conformity with the statute in such cases will be valid and the infant will be bound.

Under the Bevised Statutes, in proceedings for partition of lands by petition," jurisdiction over the person and property of infants was acquired by the appointment of a guardian, in the first instance, upon notice to such infants, or to their general guardian. Service of notice upon the infants was not indispensable to the exercise of the jurisdiction (2 R. S., 317, sec. 2; Croghan agt. Livingston, 17 N. Y., 218).

The provisions of the Bevised Statutes relating to the partition of lands were, by section 448 of the Code of Procedure, made applicable to actions for partition so far as the same could be applied to -the substance and subject-matter' of the action, without regard to form; and in Gotendorf agt. Goldschmidt (MSS. opin., 1880), it was held, that under the provisions of the Bevised Statutes and of the Code in force when that action was commenced, personal service of the summons upon an infant defendant, in an action. of partition, was not essential to give the court jurisdiction. But this is an action for foreclosure, and is governed by the general rules applicable to other actions.

The legislature has seen fit to prescribe that the summons shall be served on infant defendants. This was the mode defined by the statute for acquiring jurisdiction over their persons and property.

It is no answer to the objection that the statute has not been complied with in respect to the mode of service, that the infant is of such tender years that he would have derived no benefit from the service if made; or that it would have been competent for the legislature to have provided that service upon the parent or guardian should stand as service upon the infant. The statute has prescribed how jurisdiction shall be acquired, and courts cannot dispense with its observance.

The order should be affirmed. '

All concur, except Sapallo, J., absent.  