Opinion
(January Term, 1817.)
1. A court of equity will not proceed against an infant unless defended by a guardian ad litem; and the court cannot appoint a guardian for an infant out of the jurisdiction of the court.
2. As a court of equity acts in personam: it cannot dispense with the personal service of process in cases not provided for by statute. Hence, it will not proceed on a bill to foreclose a mortgage where all the defendants are infants and reside in another state.
THE defendant in this case was, at the time of filing the bill, a resident of Tennessee, and publication at the last term was ordered and duly made. Since that term the defendant died, leaving his children infants, who are his heirs at law. The bill is to foreclose a mortgage, and (562) 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.
We do not see any remedy for the complainant in this case. A court of equity will not proceed against an infant 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 authorized 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 the limits of North Carolina.
The motion for the appointment of a guardian for the defendant is, therefore, refused, as well as an order that they should appear before process actually served.