The appellees were infants and had a substantial interest which it was sought to affect by the special *Page 463 proceeding and the judgment thereon, in respect to which the motion embraced in this appeal was made. It appears that no summons in that proceeding was ever served upon them, nor was a guardian ad litem appointed for any one of them, nor did they appear, nor did any counsel appear for them, nor was any defence made by them or in their behalf.
It is manifest that the judgment in that proceeding, in so far as it purports to apply to them, was not only irregular, but absolutely void.
The court did not obtain jurisdiction of the appellees. There was no service of process upon them personally, nor was there constructive service, nor were they brought into the proceeding in any way recognized by law, or indeed, at all. Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him. Armstrong v. Harshaw, 1 Dev., 187; Stallings v.Gulley, 3 Jones, 344; Doyle v. Brown, 72 N.C. 393; Larkins v. Bullard,88 N.C. 35; Young v. Young, 91 N.C. 359.
Notice was issued to them by the counsel of the appellants, to procure the appointment of a guardian ad litem for themselves. This notice was without authority and had no sanction of law. In the absence of a general or testamentary guardian, it was the duty of the court, upon the motion of any party to the proceeding, to appoint a guardian ad litem. The notice mentioned seems to have been served upon but one of them; but this was not material, because it was not process; it did not purport to be, nor was any guardian ad litem appointed.
The appellees received the money designated in the judgment, as shares of the fund distributed, due to them respectively, but it appears that they were not fully informed as to the nature of the proceeding and its purpose; it does not appear what were their ages respectively, at the time they received the money, nor is it material to inquire here, because the mere receipt of it could not give life and effectiveness to a void judgment. The only object now is to set aside and quash that judgment. At another time *Page 464 and in another proceeding, they may have to account for the money received by them.
The statute, (The Code, § 387,) making valid, judgments against infants and other classes of persons in certain cases, does not apply in a case like this. Its purpose is to make valid "the proceedings, actions, decrees and judgments" against an infant or such others, in cases where they, being parties defendant, were not "personally served with a summons." But it does not purport to render valid judgments and proceedings in actions when there was no service upon an infant defendant therein, and none upon his general or testamentary guardian, or upon a guardian at litem properly appointed for him, nor can it be construed to have such effect. The Legislature did not intend that a judgment against an infant in an action or special proceeding wherein he was not made a party defendant, but treated as a defendant, should be rendered effectual against him. A statute with such a purpose would contravene fundamental right and shock the moral sense of just men!
There is no error in the judgment of the Superior Court reversing the judgment of the Clerk of that Court in respect to the infant appellees. Let this opinion be certified to that Court according to law.
No error. Affirmed.
INFANT DEFENDANTS' APPEAL.