Jones v. Mason, 4 N.C. 125, 1 Taylor 125 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 125, 1 Taylor 125

JONES against MASON.

^ A Court of not proceeda-P‘fst ®n m" by a Stt‘m an¿ tj,e Court cannot appoint a Guardian for "he ju-risd.ct on of the Court,

As that Court acts in personam, it canñot dis-Pense w,t!l a personal ser-of pro-provided tute

THE Defendant in this case, was, at the time of filing the bill, a resident of the State of Tennessee, and publi-caiion at the last term was ordered and duly made. Since that term, the .Defendant died, leaving his children fants, who are his heirs at law. The bill is to foreclose a mortgage, and the infant heirs reside in Tennessee. It _ is referred to the Supreme Court to determine, Whether the Court can appoint a Guardian to answer? And if not, whether the Complainant can proceed further, and . , ' , in what manner ?

Huitín, J.

delivered the Opinion of the Court:

We do not see any remedy for the Complainant in this J J 1 case. A Court of Equity will not proceed against an fant, unless defended by Guardian ; and we cannot appoint a Guardian to defend, for a person not within the jurisdiction of the Court. Moreover, this Court acts in personam; and cannot dispense, therefore, with a personal service of process on the Defendant, unless expressly authorised by some positive Statute; and the case stated, is not provided for by any of the Acts of Assembly regulating the proceedings in Equity against absconding Defendants, or those who reside beyond tbe limits of North Carolina. The motion for the appointment of a Guardian for the Defendants is, therefore, refused, as >vell as an order that they should appear before process actually served-