Crockett, J., dissenting: The defendant McDonald deraigns title to the demanded premises through a judicial sale in the case of Augusta S. Smith v. F. C. Smith et als., and a Sheriff's deed in pursuance thereof. The present plaintiffs were named as defendants in that action, and were minors at the date of the decree therein. Eo summons, however, was ever served upon them, and being minors they were incapable of binding themselves by a voluntary appearance, had they attempted to do so. But it appears from the findings that their father (who was also a defendant, and appeared to the action) was their general statutory guardian, duly appointed and qualified, and that he employed counsel to represent them in said action; that the counsel so employed filed, in their names, a demurrer to the complaint; and the de[489]murrer being overruled, he subsequently filed an answer for them, on which the cause went to trial. Under the decree rendered therein the defendant McDonald purchased; and if the Court acquired jurisdiction of the persons of the plaintiffs by reason of the above recited facts, it is clear "that McDonald has acquired whatever title they then had. On the other hand, if they are not bound by the decree, for a want of jurisdiction in the Court over their persons, the title is still in them, and they are entitled to recover, unless the action is barred by the Statute of Limitations.
Section nine of the code provides that “ when an infant is a party, he shall appear by guardian who may be appointed by the Court in which the action is prosecuted, or by a Judge thereof, or a County Judge;” and the next section provides on whose motion the guardian may be appointed. Section twenty-nine prescribes the method of serving the summons on an infant defendant, to wit: If he be under the age of fourteen years, by delivering a copy “to such minor personally, and also to his father, mother, guardian, or if there be none within the State, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed;” and “in all other cases to the defendant personally.” If these provisions were alone to be appealed to, it would be plain enough, that the Court could acquire no jurisdiction of the person of an infant defendant without a personal service of the summons. The Court has no power, on the motion of any one else, to appoint a guardian ad litem, for a minor above the age of fourteen, until after service on the minor, as is apparent from section ten, which authorizes him, if above the age of fourteen, to make his-application for the appointment of the guardian ad litem,, at any time within ten days after the service of the summons; and until he shall have [490]neglected to apply within that time, no one else can make the application. It is not for us to- inquire into the motives of the Legislature for requiring a personal service on an infant of tender years. It is sufficient that the statute expressly requires it; and it is our duty to see that the law is obeyed in this respect, without criticising the reasons for its enactment. But it is not difficult to perceive very sufficient reasons for this provision, founded on the vigilant care which the law exercises over minors and their estates. Children are generally under the care or control of relatives or friends, who feel an interest in their welfare; and a personal service or process on a minor increases the chances of protecting his rights, and diminishes the opportunity for fraud and collusion in the disposition and management of his estate. The general guardian may, possibly, be himself a party to a contemplated fraud on the minor, or may be culpably neglectful of his duties, in either of which events the summons served personally on the minor, and which may, and very probably would, fall into the hands, or attract the notice of the friend or relative having the custody of his person, and who is presumed to feel an interest in his affairs, might possibly be the means of preventing a wrong. In a majority of cases the practical effect of personal service on a minor is to give notice of the action to the actual custodian of his person; and this was, doubtless, the chief motive for requiring such service. There may be very satisfactory reasons why the general guardian should not be allowed to defend for the minor. He may be incompetent to conduct an important litigation,- or he may be liable to a suspicion of fraud or collusion, or so negligent as to render him an unfit person to prepare the defense. In such cases the personal service on the minor may be the means of bringing these facts to the attention of the Court, and thus securing the appointment of a proper guardian to conduct the defense. But by section sixteen of the Act to provide [491]for the appointment and prescribing the duties of guardians it is provided, that the guardian “shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed as guardian or next friend.”
In Gronfier v. Puymirol, 19 Cal. 629, a general guardian appeared and defended the action for his ward, on whom there had been no service of process, and without having been appointed guardian ad litem by the Court in which the action was pending; and this Court held the proceedings to be valid, and that the ward was bound by the judgment. The decision is founded on the provision of section sixteen of the Act above quoted, which was held to authorize an appearance for the ward by the general guardian, when no guardian ad litem had been appointed. But the attention of the Court does not appear to have been called to the provisions of the code requiring a personal service on the minor, as affecting the question of jurisdiction. If service on the minor be shown, it cannot be doubted that the general guardian may appear for and represent him in the action, unless another be specially appointed for that purpose. But, as already stated, one of the principal ends to be subserved in requiring service on the minor, is to bring the matter to the attention of his friends, relatives, or custodian, so that they may have the opportunity to show that the general guardian is not a fit and proper person to represent him in the litigation. This object might, and in many cases would be wholly defeated if no service on the minor was required before the general guardian was authorized to appear for him. After service on the minor, if no one appears within the proper time to apply for the appointment of a guardian ad litem, the presumption is that there is no objection to an appearance on his behalf by the general guardian. But, as I construe these provisions, and in view of the policy which obviously dictated them, the general guardian has no au[492]thority to appear for his ward in the action until after the latter shall have been served with process, and until the time shall have elapsed within which an application may be made by the minor, or in his behalf, for the appointment of a guardian ad litem, to wit: ten days after the service. In so far as the decision in Gronfier v: Puymirol contravenes this proposition, it ought, in my opinion, to be overruled.
I am not, however, to be understood as holding that if a minor be a non-resident, so that he cannot be personally served, the service may not in that case be made by publication of summons, as in other cases in which the service by publication is substituted for personal service. My conclusion on this branch of the case is that the plaintiffs are not bound by the decree in the case of Augusta S. Smith and F. C. Smith et als., because they were not served with the summons.
But the defendants claim, on the authority of Hahn v. Kelly, 34 Cal. 391, that all the presumptions are in support of the decree, and that in a collateral action it cannot be shown by proof dehors the record, that there was no service of summons on the present plaintiffs. The record, however, in that action is not before us on appeal. The Court finds it as a fact that no summons issued and none was served on the plaintiffs, and, for aught that appears, the fact may have appeared on the face of the record itself. This is an appeal on the judgment roll alone, and we must presume that there was sufficient competent "evidence to support the findings. The decree against the plaintiffs was absolutely void, and not merely voidable as to them, and their acquiescence in it, for a time after reaching their majority, does not estop them. Nor is their claim barred by the Statute of Limitations, upon the facts found by the Court.
I think, therefore, that the judgment should be reversed, and cause remanded for a new trial.
[493]Mr. Justice Temple did not take part in either of the foregoing opinions. ,,,