J. HENRY TAYLOR vs. ANNA J. LOVERING

WRIT OF ERROR, filed December 6, 1897, to reverse a judgment of the Superior Court rendered in an action of contract by the defendant in error against the plaintiff in error.

At the hearing, it appeared that the writ in the original action was dated July 15, 1897, and was returnable on the first Monday

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of September, 1897; that on July 16 and on July 19, 1897, certain property of the defendant Taylor was attached; that no service of the writ was made upon him, and that the writ was entered in the Superior Court without service upon him; that after the entry of the writ a certain order of notice, returnable on the first Monday of October, 1897, was issued by the court, directed to the defendant Taylor; that it was never served on him, but on September 18, 1897, the officer made a return thereon, stating that Taylor was confined in an insane asylum, and that he could not make service upon him, but "gave notice to Joseph Middleby, guardian of said defendant, by leaving at his last and usual place of abode a true and attested copy of the within order"; that annexed to the officer's return was a letter from the superintendent of the McLean Hospital, stating in substance that Taylor was there confined and hopelessly insane; that no appearance for the defendant was entered, and on October 19, 1897, the plaintiff moved that Taylor be defaulted for want of appearance and answer, which motion was allowed; that it did not appear that any notice of the making of the motion, or of its allowance, was given to any person representing Taylor; that on the first Monday of November, 1897, judgment was entered against Taylor in the sum of $1,577.38; and that Joseph Middleby was appointed guardian of Taylor on July 15, 1897.

J. J. Feely, for the plaintiff in error.

S. W. Forrest, for the defendant in error.

FIELD, C.J. In Hicks v. Chapman, 10 Allen 463, 464, it is said of the office of guardian: “It is created by statute, and is in some respects unlike the office of guardian as it has existed by the common law in England. Guardians are not, like executors, administrators, or trustees, invested with a legal title to the property which is placed under their care; but they have a naked power, not coupled with an interest. The debts of the ward remain his, so that, though he has no power to pay them, yet he, and not the guardians, must be sued upon them. Brown v. Chase, 4 Mass. 436. If they defend actions brought against him, they must defend in his name, and not in their own. If they bring actions, it must be in his name, and not in their own, and the judgment is in his name. The proper discharge of their duties does not require them to subject themselves

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to any personal litigation or liability for costs. It is true that they may make contracts in their own names, and such contracts bind themselves, but do not bind either the ward or his estate. Thacher v. Dinsmore, 5 Mass. 299. Forster v. Fuller, 6 Mass. 58. Jones v. Brewer, 1 Pick. 314. Whiting v. Dewey, 15 Pick. 428. Spring v. Woodworth, 4 Allen 326.” See, also, Kavanaugh v. Kavanaugh, 146 Mass. 40.

In the present case, therefore, the petition for the writ of error should have been brought in the name of the ward, by his guardian or next friend. The writ of error, as actually issued, contains the proper parties. The guardian was not a party, and could not properly have been made a party to the original suit. Lombard v. Morse, 155 Mass. 136. See Richmond v. Bank, 152 Mass. 359.

There is no statute which permits the service of a writ against an insane person who is under guardianship to be made upon the guardian, instead of upon the ward, and there was therefore no sufficient service of the writ upon the defendant in the original action. The Superior Court, on being informed that the defendant was an insane person, under guardianship, in this Commonwealth, properly ordered notice of the pendency of the action to be given to the guardian; and, if the guardian had appeared in the action in the name of the defendant, this probably would have cured the want of service upon the defendant. In Whitcomb v. Jacobs, 9 Gray 255, it is said that the guardian should be made a party to the proceedings; but this, we think, is not strictly true in our practice; he should have notice of the proceedings. White v. Palmer, 4 Mass. 147. If the guardian, having notice of the pendency of the suit, does not appear and defend it in the name of his ward, a guardian ad litem should be appointed for that purpose. See Emery v. Parrott, 107 Mass. 94.

In the chancery practice in England, process must first be served on an infant, before a guardian ad litem can be appointed; and this is said to be the general practice in suits against an idiot or lunatic who has been found to be of unsound mind by inquisition. Substituted service upon the keeper of an asylum where a lunatic is confined has there been allowed, in equity, when service upon the patient would be injurious to him. In some of the states, service upon a committee

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or upon a guardian has been held sufficient. The cases in equity on this subject are collected in 1 Dan. Ch. Pl. & Pr. (6th Am.Ed.) by Gould, 161 et seq., and notes; Id., 176 et seq., and notes.

As our statutes concerning the service of writs and subpoenas, Pub.St. c. 161, §§ 29–37, contain no special provisions for service upon infants, or upon persons under guardianship, or of unsound mind, the practice here, we think, has been to require the same service on them as upon other defendants. We think that this is the proper practice. Although service on an infant or a person of unsound mind sometimes would seem to be useless, it often would be difficult to determine whether in fact it would be so or not; and it is a convenient practice to require service according to the statutes in every case, and not to appoint a guardian ad litem until this has been done. The practice of appointing guardians ad litem prevails here in actions at law as well as in suits in equity. As there was no service of any kind upon the defendant in the original suit, and as her guardian, who was authorized by law to appear for her, did not appear in the suit, and as no guardian ad litem was appointed, even if it were true that such a guardian could have been appointed without service of process upon the defendant, we are of opinion that the judgment should be reversed. An insane defendant ought not to be defaulted for want of an appearance and answer to the suit. See Van Horn v. Hann, 10 Vroom 207; Sturges v. Longworth, 1 Ohio St. 544; Lamprey v. Nudd, 29 N.H. 299, 303; Allison v. Taylor, 6 Dana, 87; Swan v. Horton, 14 Gray 179; Davenport v. Davenport, 5 Allen 464; Denny v. Denny, 8 Allen 311; Emery v. Parrott, 107 Mass. 95.

Judgment reversed.