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adopted, and the application be made, in all cases, in the usual form, in the same manner as other motions in the cause.
The guardian, when appointed on behalf of a sole infant plaintiff, is responsible to the defendant for the costs of the suit, if the latter prevails. The contrary is the case as regards the guardian of an infant defendant, unless he be specially charged, by order of the court, for some personal misconduct in the cause.-V. 2 R. S. 446 and 447, sections 2 and 12. He may, however, receive costs and expenses allowed by the court to him out of the fund, or recovered by the infant in the suit-rule 58--but, beyond this, he cannot receive any money or property belonging to the infant, or awarded to him in the suit, without having first given security as above referred to.
It is not necessary to serve a copy of the order appointing a guardian on the opposite party, though it is competent so to do. The fact will of course appear on the pleadings by substantive allegation, either in the title or otherwise.
The guardian for an infant plaintiff must be appointed before summons issued. Where, accordingly, such appointment had been made, after issuing, but before service of summons and complaint, the latter were set aside as irregular.-Hill v. Thacter, 3 How. 407; 2 C. R. 3.
A judgment against an infant defendant by default, without the previous appointment of a guardian ad litem, was set aside on motion, without imposing terms, and with costs, in Kellogg v. Klock, 2 C. R. 28.
No consent of a guardian, on behalf of infants, will render valid a judgment against them, in the absence of legal proof, or any other irregular proceeding in the cause.—Litchfield v. Burwell, 5 How. 341. Nor is the responsibility of the guardian to the infant any answer to the objection.
Where a husband and an infant wife sue in respect of joint property, no appointment of guardian ad litem in respect of the latter is necessary, the husband appointing an attorney for both, and being responsible for the costs.--Cook v. Rawdon, 6 How. 233. See also Hulbert v. Newell, 4 How. 93.
Where, however, the suit is in respect of the wife's separate property, it would seem that the reverse is the case.- Cook v. Panages and Coit v. Coit, 6 How. 53, as before referred to. (See this subject heretofore examined under the head of Parties.)
OF THE FORMAL MACHINERY OF AN ACTION.
PROCEEDINGS in a regular action may be classified under two general divisions, viz.—First, the ordinary, and Second, the extraordinary; the former incident to all proceedings without distinction, the latter collateral, and adoptable or not, at the discretion of the parties.
The ordinary proceedings in a suit will not be entered upon here, but will be considered in the following portions of the work, in due order; and, with them, the essential characteristics of any interlocutory or extraordinary applications that may be necessary from time to time, will also be noticed. The present chapter will be exclusively confined to the mere formal proceedings incident to all such applications, and also to the progress of the cause, in a general point of view only, without regard to the merits, or the particular proceedings involved.
In most, if not all, of the practical works of a similar nature to the present, this dissociation of matters of pure form from matters of substance, has been more or less attempted, but with various differences in the mode of arrangement. In some, the consideration of interlocutory applications, in particular, is deferred to a supplemental chapter: in others, the same matter is introduced in an introductory form. Each method presents certain relative advantages. By the one, the student is enabled to enter upon the regular march of a suit, at once, without being detained by preliminary considerations; the other places him at once in preliminary possession of the required information on various points, for which he must otherwise be continually looking forward.
Allusions to different species of interlocutory remedies or formal proceedings occur, of necessity, in almost every page, in treating of the general progress of a suit; and it seems, therefore, of the two, the more conducive to convenience, to introduce the necessary information as to the forms required in these cases, at an earlier stage of the work.
Interlocutory proceedings may be reduced under the two general heads of motions and orders, and their necessary preliminaries. The merely formal machinery of a suit includes a variety of subjects of general application. The latter will be taken first, and the former treated of at the conclusion of the chapter.
Written notices to the adverse party are, in the first place, necessary in connection with almost every proceeding in every stage of the cause. The essentials of such notices will be treated of hereafter, in connection with each subject. All must, however, under sec. 408, be in writing, and be duly served on the adverse party or attorney.
The mode of service of notices, of whatever nature, and of papers in the suit in general, is thus prescribed by section 409:
$ 409. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made : or it may be as follows:
1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or, if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion.
2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable
and discretion. Where, however, the party has already appeared by attorney, service of all papers whatsoever must be made on the latter. The provisions of sec. 417 are express on the subject, as follows:
$ 417. Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party.
Service on the party of the ordinary papers in a suit, after an attorney has appeared for him, will not be good. In Tripp v. De Bow, 5 How. 114, 3 C. R. 163, a notice of appeal served on
the party, instead of the attorney, was decided to be bad, and such appeal was accordingly held to be a nullity. It was also held that the objection might be taken advantage of at any time, provided the party served had not appeared and answered, or proceeded in such a manner as to waive the defect, and give the court jurisdiction. The attorney of the party must, of course, be the attorney of record. Service on a mere agent will not be available.— V. Weare v. Slocum, 1 C. R. 105.
The following exception from the above provision is effected by sec. 418:
§ 418. The provisions of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a party into contempt.
Whenever, therefore, a proceeding is of a penal nature, or any specific act is commanded or forbidden to be done, the service must be personal. In a large proportion of these cases, it will, however, be prudent to notify the opposite attorney also.
Where a defendant has not demurred or answered, service of notices or papers, in the ordinary proceedings in an action, need not, under sec. 414, be made upon him at all, unless he be imprisoned for want of bail, or unless a regular notice of appearance has been given. In this latter case, service must be made on him or his attorney in the usual manner.
The mode of service being so clearly prescribed by sec. 409, as before cited, it would be useless to repeat the directions there given. The form of an affidavit of service adapted to the different states of circumstances mentioned in that section, will be found in the Appendix. Service may also be proved by the admission of the attorney, to procure which is an usual and convenient practice. One signed by the party would also be valid, but is less unobjectionable, inasmuch as the court cannot take judicial notice, but may, on the contrary, require actual proof of his signature.
In order to the due regularity of service on a clerk, or person in charge, it should be ascertained that the attorney is absent from his office at the time, as, if not, it may be questionable whether service upon any other party will be strictly regular. It is clear that a notice cannot be properly served when the office is not open, by passing it under the door or otherwise, and clear also that service upon a clerk, or person in charge is not regular, if made elsewhere than in the office itself.
The limitations as to hours, in cases of service at the residence of either party or attorney, should likewise be carefully noted. Although in strictness, a paper must be served within due time, or otherwise the service will be null; still, where due diligence has been used, and that service has been rendered impossible by the act of the intended recipient, the court will not allow him to take advantage of his own wrong, and will hold subsequent service at the earliest possible period, to be regular. Thus, in Falconer v. Ucoppel, 2 C. R. 71, where, on the last day for serving an amended answer, the defendant endeavored, in office hours, to make the service, both at the plaintiff's office and dwelling, but both were closed, and no one could be found to receive it but, on the following day, the same was served personally, with notice of the attempted service of the day before, it was held that, in making the best possible service, the defendant was regular, and the plaintiff was fixed with the costs of the motion ; of course this doctrine is only adapted to extreme cases where full diligence has been used, and the conduct of the other side has been evidently evasive. Unless the moving party has made every possible effort, and fails, not from want of any exertion of his own, but from the absence or bad faith of the opposite party, it would, on the contrary, be most unsafe for him to rely on obtaining relief of this description. Where a paper has been refused by an attorney as served out of due time, a subsequent service on his clerk, in ignorance of the refusal of his principal, was held of no avail; O'Brien v. Catlin, 1 C. R. (N. S.) 273.
In sec. 415, provision is made for the case of a party who has appeared in the action, but who resides out of the state, and has no attorney within it. In this case, the service may be made by mail, if his residence be known ; if not, on the clerk for the party. The last clause is somewhat obscure, and seems, in fact, contradictory to previous portions of the Code, which expressly provide that, as regards the summons on the one hand (sec. 128), or the notice of appearance on the other (sec. 130), a place for service within the state must be named ; service at which place would doubtless, under such circumstances, be held as regular, both generally, and under rule 5, of the supreme court.
It is clear that service on a Sunday is not admissible under any circumstances, and, if made, will be irregular.-7. Pulling