1. Where a suit is brought not to enforce a claim or lien upon
property, but to cancel a purely personal contract, the circuit
court cannot acquire jurisdiction of the defendant unless he appear
or there be personal service of process upon him within the
district. If he is an infant, the decree against him is void on its
face, the record showing affirmatively the nonservice of process,
although a guardian
ad litem was appointed for him in his
absence.
2. The necessity for such service on the infant is not obviated
by the state statute requiring his general guardian "to appear for
and represent his ward in all legal suits and proceedings unless
when another person is appointed for the purpose as guardian or
next friend."
This was an action on two policies of insurance upon the life of
James H. Bangs, each for $5,000, issued on the 22d of November,
1875, by the New York Life Insurance Company, and made payable to
the plaintiff. It was originally commenced in a court of the state
of Minnesota, and was removed to a general denial of its states on
the petition of the company, averring that he was a citizen of
Minnesota, and that the company was a corporation created under the
laws of New York. To the complaint the company answered and, in
addition to a general denial of its allegations, set up that the
insured had committed suicide by voluntarily taking poison with the
intention of producing death, and when the policies were applied
for and obtained, he was represented to the company to be in sound
health, correct in habits, to have every prospect of a long life,
and to be a person who fully intended to live as long as possible
in the course of nature; that the company relied upon these
representations, and believed them to be true, and would not
otherwise have accepted the risks and issued the policies, or
either of them; but that nevertheless the representations were
false and fraudulent, and, at the time they were made and the
policies applied for and obtained, the insured intended to take his
life within a short period, and thereby to defraud the company out
of the amount of insurance, and that in execution of this
fraudulent purpose, he took his life. The action was commenced in
June, 1876, and in
Page 103 U. S. 436
July following the order for its removal was made; but the
proceedings were not in fact transferred until the subsequent
December, when the answer was filed. Nothing further was done in
the case until June, 1877, when the company obtained leave to file
a supplemental answer setting up a decree which, during that month,
it had recovered against the plaintiff in the Circuit Court of the
United States for the District of Michigan. It appears that in
March, 1876, the company had commenced a suit in equity in that
court against the plaintiff here and his mother to obtain a
cancellation of the policies of insurance and an injunction against
instituting or prosecuting any action at law upon them. The bill
averred -- what is substantially stated in the answer above, but
with much greater detail -- that the insured obtained the policies
with the intention, at the time, of taking his life soon
afterwards, and thereby defrauding the company out of the amount of
the insurance, and that he carried out this intention by taking
poison, which caused his death. The supplemental answer, after
setting forth the institution of the suit, averred that subpoenas
were issued and served upon the defendants; that Edson C. Bangs,
the son of the insured, to whom the policies were payable, being a
minor, one Henry A. Harmon was appointed by the court guardian
ad litem for him; that by this guardian he filed an answer
denying that the death of the insured was caused by poison, or that
the policies were obtained for the purpose of defrauding the
company, or that death was effected in pursuance of any such
fraudulent design, and all allegations of fraud in the bill; that
afterwards proofs were taken and a decree was rendered therein
adjudging the policies to be void and ordering their cancellation,
and perpetually enjoining the defendants from instituting and
carrying on any action at law upon them.
An exemplified copy of the record was annexed to and made part
of the supplemental answer. To this answer the plaintiff demurred
on the ground, among other things, that the proceedings of the
circuit court of the United States were void in that it appeared
from the record that the court never had jurisdiction of the person
of Edson C. Bangs, the plaintiff here, and no jurisdiction in
equity over the action under the circumstances mentioned. The
demurrer was sustained, and subsequently
Page 103 U. S. 437
the defendant obtained leave to withdraw the original answer so
as to rest its defense upon the supplemental answer and the matters
therein pleaded. Judgment was accordingly rendered for the
plaintiff for the amount claimed, and to review that judgment the
case is brought to this Court on writ of error.
The record of the equity suit in Michigan showed on its face
that the subpoena issued in it was never personally served upon the
defendant, Edson C. Bangs, the plaintiff in this action; that it
was only served on his general guardian after he, Bangs, had left
the state and gone to Minnesota to reside; that upon the affidavit
of the complainant's solicitor, stating that the subpoena and
injunction in the case had been a week in the hands of the marshal,
who reported that he could not find the defendants in his district,
that they had locked up the house where they resided and had
temporarily left the state, and that he was unable to find any one
in charge of the house, the court made an order declaring that the
service of the subpoena and injunction on the general guardian was
a good service upon the infant; that afterwards the general
guardian was appointed guardian
ad litem for him, but not
making any appearance for him, and not intending to submit the
rights of the infant to the adjudication of the court, his
appointment was revoked, and Henry A. Harmon was substituted as
such guardian
ad litem in his place, and that he
subsequently acted in the case in that capacity for the infant.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
As seen from the statement of the case, the only matter for our
consideration relates to the validity of the decree of the Circuit
Court of the United States for the District of Michigan, and that
depends upon the solution of the question whether the court had
jurisdiction of the person of the infant, Edson C. Bangs, the
plaintiff here, and of the subject matter of the suit upon which it
acted.
Page 103 U. S. 438
From the view we take of the case, it will only be necessary to
examine the proceedings to see whether the infant was ever brought
before the court so as to justify the appointment of a guardian
ad litem for him. The general authority of courts of
equity over the persons and estates of infants, upon which counsel
have so much dwelt, is not questioned. It may be exerted, upon
proper application, for the protection of both. This jurisdiction
in the English courts of chancery is supposed to have originated in
the prerogative of the crown, arising from its general duty as
parens patriae to protect persons who have no other
rightful protector. But partaking, says Story, as the prerogative
does, more of the nature of a judicial administration of rights and
duties
in foro conscientiae than of a strict executive
authority, it was very naturally exercised by the Court of Chancery
as a branch of its original general jurisdiction. "Accordingly," he
adds,
"the doctrine now commonly maintained is that the general
superintendence and protective jurisdiction of the Court of
Chancery over the persons and property of infants is a delegation
of the rights and duty of the Crown; that it belonged to that
court, and was exercised by it from its first establishment; and
that this general jurisdiction was not even suspended by the
statute of Henry VIII, erecting the court of wards and
liveries."
The jurisdiction possessed by the English courts of chancery
from this supposed delegation of the authority of the Crown as
parens patriae is more frequently exercised in this
country by the courts of the states than by the courts of the
United States. It is the state and not the federal government,
except in the territories and the District of Columbia, which
stands, with reference to the persons and property of infants, in
the situation of
parens patriae. Accordingly provision is
made by law in all the states for the appointment of such
guardians, whose duties and powers are carefully defined. The
authority of the federal courts can only be invoked within the
limits of a state for such an appointment where property of the
infant is involved in legal proceedings before them, and needs the
care and supervision of an officer of that kind. In such a case, to
preserve the property from destruction or waste, the federal courts
may appoint a guardian to take care of it pending the proceedings.
And those courts
Page 103 U. S. 439
will always see that a proper guardian
ad litem has
charge of the infant's interests where his property is involved in
proceedings before them. This is the extent of their authority.
Nothing is gained, therefore, in this case by reference to the
general power of courts of equity over the persons and property of
infants. The infant Bangs possessed no property in Michigan when
the suit in equity was commenced against him. That suit did not
concern any property, real or personal. It was brought to cancel a
contract made with his father, and any decree respecting it would
necessarily have been
coram non judice unless the parties
interested were before the court upon the service of a subpoena or
their voluntary appearance. The infant, being absent from the
state, could not be personally served.
The statute of Michigan requiring the general guardian of an
infant to
"appear for and represent his ward in all legal suits and
proceedings unless when another person is appointed for the purpose
as guardian or next friend"
does not change the necessity of service of process upon the
defendants in a case before a court of the United States where a
personal contract alone is involved. It may be otherwise in the
state courts; it may be that, by their practice, the service of
process upon the general guardian, or his appearance without
service, is deemed sufficient for their jurisdiction. We believe
that in some states, such is the fact; but the state law cannot
determine for the federal courts what shall be deemed sufficient
service of process or sufficient appearance of parties. Substituted
service by publication against nonresident or absent parties,
allowed in some states in purely personal actions, is not permitted
in the federal courts. Such service can only be resorted to where
some claim or lien upon real or personal property is sought to be
enforced and the decision of the court will then only affect
property of the party within the district. Rev.Stat., sec. 738.
In all cases brought to enforce or cancel personal contracts or
to recover damages for their violation, the statute requires a
personal service of process upon the defendants or their voluntary
appearance. And the equity rules qualify the statute only so far as
to allow, in cases of husband and wife, a copy of the subpoena to
be delivered to the husband, and in other cases a
Page 103 U. S. 440
copy to be left at the dwelling house or usual place of abode of
the defendant with some person who is a member of or resident in
the family. In either mode, the defendant is to be served within
the district, and until such service or his appearance, the court
has no jurisdiction to proceed or to render a decree affecting his
rights or interest. There being here no property of the infant
defendant within the District of Michigan which the court could lay
hold of -- and he being absent from it -- there was no foundation
laid for any progress by the court in the case. It never acquired
jurisdiction over the infant; it could therefore appoint no
guardian
ad litem for him, and the decree rendered against
him was ineffectual for any purpose.
Our attention has been called to several cases of the state
courts in which it has been held that a decree or judgment could
not be collaterally attacked, though rendered in a case where a
guardian
ad litem had been appointed without service of
process on the infant. Such are the cases of
Preston v.
Dunn, 25 Ala. 507;
Robb v. Lessee of Irwin, 15 Ohio,
689; and
Gronfier v. Puymirol, 19 Cal. 629. All of them
are illustrative of the position we have stated; they all relate to
the interest of the infant in real property in the state.
In
Preston v. Dunn, the bill was filed by an infant,
suing by his next friend, to redeem a tract of land which had once
belonged to his father, who had mortgaged it, and which had been
sold under judicial decree in a foreclosure suit and purchased by
the defendant. The father having died pending the foreclosure suit,
and a posthumous child to him having been born, a bill of revivor
was filed against the administrator and administratrix of his
estate and his infant son. A subpoena was served on the adult
defendants, and a guardian
ad litem was appointed by the
court for the infant, who appeared for him. It was held by the
Supreme Court of Alabama that the decree rendered upon such
appearance was irregular, but not void, and that it could not be
attacked collaterally.
In
Robb v. Lessee of Irwin, it appeared that a guardian
ad litem for infant heirs had been appointed in a
proceeding for the sale of certain real property in which they were
interested. In an action of ejectment subsequently brought by the
heirs, it was held by the Supreme Court of Ohio that the
proceeding
Page 103 U. S. 441
was not vitiated by the appointment of the guardian
ad
litem without previous service of process on the infant.
In
Gronfier v. Puymirol, a general guardian of the
estate of nonresident infants had been appointed by the probate
court upon the representation that they were interested in certain
real property in the state. In proceedings for a sale of such
property, the general guardian appeared for the infants without
being appointed guardian
ad litem for them, and it was
held by the Supreme Court of California that the court had
jurisdiction to order the sale and that it passed a good title, and
that under the practice of the state, a general guardian could
appear in legal proceedings for his ward when a guardian
ad
litem was not appointed by the court.
There is nothing in these cases which at all conflicts with the
views we have expressed as to the jurisdiction of the Circuit Court
for the District of Michigan in appointing a guardian
ad
litem for a nonresident or absent infant in a case which did
not touch any property in the district, but was brought to cancel a
personal contract.
There are also some cases in the state courts in which a
judgment upon a personal demand has been sustained against
collateral attack, though rendered in an action where a guardian
ad litem had been appointed without previous service of
process upon the infant; but they are exceptional, and there has
generally been in them some circumstance which rendered any
disturbance of the judgment likely to lead to great hardship and
injustice. Such is the case of
Bustard v. Gates and Wife,
4 Dana (Ky.) 429. There, an ejectment was brought for land more
than twenty years after it had been sold, and which during the
interval had greatly increased in value. But in none of the cases
to which our attention has been called has a judgment been upheld
where a guardian
ad litem had been appointed for a
nonresident infant against whom a purely personal demand was
prosecuted. If such a case exists, the judgment in it can have no
greater force than one rendered for a personal demand against a
nonresident upon any other form of constructive service, and that
constructive service will not give jurisdiction in such cases is
the established doctrine of this Court.
Pennoyer v. Neff,
95 U. S. 714.
Judgment affirmed.
