ALPHONSO B. SMITH and GEORGE V. SMITH v. JAMES M. McDONALD and C. F. COLTON, 42 Cal. 484

By the Court, Wallace, J.: The facts, or most of them, out of which the present controversy arises, may be seen in the report of the case of Smith v. Smith, 12 Cal. 217. At the sale under the decree which the Court below rendered in that case, by the direction of this Court, lot six, between M and ¡N, and Eighth and ¡Ninth streets, in the City of Sacramento, was purchased by the defendant McDonald.

The plaintiffs here, who now seek to recover it from him, were the infant defendants in that case, and they now claim that the proceedings resulting in the sale are void as to them, on the ground that jurisdiction of their persons was never acquired. It appears, from the findings filed in this action, that no summons was personally served upon the infant defendants in that action, but that, without such service being made or attempted, their father, F. C.

Smith, who was himself a defendant, and was at the time their general guardian, duly appointed, qualified, and acting, “ appeared in said action, and by attorney, for himself and them, defended the same; that said attorney, on behalf of said infants and in their names, and F. C. Smith as their guardian, demurred to the complaint therein,” etc. It is insisted by counsel that F. C.

Smith, as such general guardian, had no authority to appear for his wards in that action, because no service of summons had been made upon them, or either of them; and that, in the absence of such service, the appearance so entered was of no legal import whatever, and, as a consequence, that the decree subsequently rendered therein was absolutely void, to all intents and purposes, as to them. The question thus presented, though jurisdictional in its consequences, is purely one of practice.

It is a question of correct or incorrect procedure in cases in which infant defendants are impleaded, or attempted to be impleaded, in Courts of justice. It is exactly the question which arose and was determined here in the case of Gronfier v. Puymirol, 19 Cal. 629, and ever since the decision there rendered, it has been regarded as definitively settled in the Courts of this State. In that case, Gronfier, the infant defendant, was not within the territorial jurisdiction of the Court in which he was impleaded; he was at the time in France, of which country he was a resident.

Ho service of summons was made or attempted upon him. Mr. Lies having heen appointed to be his guardian by the Probate Court, under that provision of the statute authorizing such an appointment for a minor “ who shall reside without the State and have any estate within the county,” entered his appearance in the action. Objection being subsequently made here to the authority of the guardian in that respect, the objection was held not well taken. Mr.

Chief Justice Field delivering the opinion of the Court, upon this point said: “ As Lies was general guardian, there was no occasion for his special appointment as guardian ad litem in the action. As general guardian he was authorized—indeed it was his duty—to appear for his ward.” It is believed that the authority of that case, upon the point involved, has never been doubted or called in question until now.

The construction which it gave to the statute, in the respect now under consideration, has since then been steadily adhered to by the Courts—it has been relied upon by the profession in the examination of titles, and acted upon in the purchase and sale of real estate during the intervening period, now some eight years—and property interests of immense magnitude must be imperiled if it is to be overturned now.

Under such circumstances it has arisen to the importance of a rule of property, and even though it were conclusively shown to have been, as an exposition of the statute it attempted to construe, incorrect at the outset, I think it, nevertheless, our duty to maintain it now, and not permit it to be disturbed. If its operation for eight years in practice has indeed shown it to have unnecessarily facilitated the despoliation of the estates of infants, it certainly is not for us. to abrogate it for such a reason.

The Legislature can make such change, if it be desirable, without the disturbance of titles and the destruction of individual rights, which invariably follow such a change when brought about by a judicial decision. When a rule, by which the title to real property is to be determined, has become established by positive law or by deliberate judicial decision, its inherent correctness or incorrectness, its justice or injustice, in the abstract, are of far less importance than that it should, itself, be constant and invariable.

We should not disturb such a rule of property here, even though we be satisfied that we could substitute another preferable in theory, or better calculated by its operation to promote the purposes of justice. Entertaining these views, I am of the opinion that the judgment of the Court below should be affirmed, and it is so ordered.