The opinion of the Court was delivered by
Moses, C. J.That no one is bound by a judgment in a proceeding to which he has not been made party in due form of law cannot be disputed. It may be conceded, too, that when a new jurisdiction is conferred by statute on an inferior Court, its action under it will be void unless it appears to be in conformity with the conditions prescribed for the exercise of such jurisdiction.
By Section 27 of the Act of 1839, (11 Stat., 44,) the Ordinary was authorized to make sale or division of the real estate of-"a deceased leaving a last will or dying intestate, provided it did not exceed in value the sum of $1,000, except in the case of a will otherwise directing. The form of the summons is given, and it is “ to be served on those interested and they shall be made parties as herein-before prescribed respecting the method of making parties to the proceedings of proving a will in solemn form,” which, by Section 11 of the same Act, was “ by personal notice to those within the State.” The said Section 37 provides “ that in case there are minors interested, the Ordinaries respectively shall have full power *463and authority to appoint a guardian or guardians ad litem in each case.”
The purpose of the summons is to bring the parties into Court, — in the case of the minor that his rights may be guarded and protected by the officer who is to pass upon them, and in the case of the adult that he should have notice of the proceedings in which his interests are involved, so that he may appear or allow judgment by default to be entered against him, as he might determine for himself.
In the proceeding now under review, not only was a guardian ad litem appointed for the infants interested, including Frank Veno, but the record shows that he accepted ; and although his written acceptance of legal services and consent to the sale of themselves could not bind the infant, they are confirmatory of the fact, not only that he was recognized by the Ordinary as before the Court, but that a head was provided to think for him and a tongue to speak in his behalf. If there were any talismanic effects to be produced on a child of eight years (that being the age of Frank Veno at the time) by the personal service of a paper, the purport of which was beyond his comprehension, we might possibly be inclined to hold that, in the absence of proof of such a ceremony, no judgment could avail against him. The mere service of a summons, not followed by the appointment of a guardian ad litem, could not have bound the infant. The summons, then, is not the efficient medium through which he is made a party in the case in which his name appears as a defendant. His security is in the appointment and acceptance of a guardian ad litem, whose duty it is to bring his interests to the view of the Court, that, being known, they may be protected. Nor should the Court act until the rights of the infant are so submitted.
The provision made in the same Section of the Act in regard to the course to be pursued where “ minors are interested” would seem to qualify the character of the required service, so far as related to them. The petition itself brought to the notice of the Ordinary the fact that the distributees entitled with the mother were all infants, and he resorted to the only order within his competency for the security of their rights in the matter on which he was to pass judgment. The reasons upon which we based our conclusion in Bulow vs. Witte, (3 S. C. R., 308,) apply in full force to the case in hand.
The motion is dismissed.
Wright, A. J., and Willard, A. J., concurred.