Husband and Wife — G.L. 3600 — Guardian and Ward — Service of Process in Suit against Ward — G.L. 3694 Not Applicable to Proceeding under G.L. 3600 — Question Not Raised Below.
1. In proceeding under G.L. 3600 by wife against husband who was under guardianship, for support, as G.L. 3601 provides that summons and petition shall be served upon defendant, service on guardian alone was not sufficient, notwithstanding G.L. 3678 authorizing guardian to maintain and defend actions or suits when necessary for recovery or protection of property or person of ward, and G.L. 3664 authorizing guardian to enter to prosecute or defend pending action against ward.
2. Existence of guardianship does not take away ward's legal capacity to be served with summons in action against him.
3. G.L. 3694, providing that writ or execution shall not be issued against ward for debt while he is under guardianship, has no application to petition by wife against husband under guardianship for support, under G.L. 3600, since such petition is not writ for debt within meaning of statute.
4. Where it did not appear by record that question was raised below that motion to dismiss petition under G.L. 3600 was defective, such question is not for consideration in Supreme Court on exceptions.
MOULTON, J.
This is a petition for support under G.L. 3600, brought by the plaintiff against the defendant, her husband. The record is somewhat meager, but from it we are able to learn that the defendant for some reason which does not appear was under guardianship; that the only service of process was the delivery of a copy of the petition and precept to the guardian; that the defendant, appearing specially, moved to dismiss because no legal service had been made upon him; that the trial court granted the motion; and that the plaintiff excepted.
G.L. 3601 provides that the summons and petition authorized by G.L. 3600 shall be served upon the party defendant. Although by G.L. 3678 a guardian "may maintain and defend actions or suits when necessary for the recovery or protection of the property or person of his ward"; and by G.L. 3664 provision is made for the entry of a guardian to prosecute or defend a pending action by or against a person adjudged to be insane, a spendthrift, or mentally incapable of caring for himself or his property, after the commencement of the action; we have no statute authorizing the service of process upon a guardian in a proceeding against the ward. In the absence of such a statute service upon the guardian alone is not sufficient. Taylor v. Lovering, 171 Mass. 303, 305, 50 N.E. 612; McKenna v. McArdle, 191 Mass. 96, 99, 77 N.E. 782; In re Martin, 86 N.J. Eq. 265, 98 A. 510, 512; Scott v. Winningham, 79 Ga. 492, 4 S.E. 390.
Jurisdiction is to be obtained over an insane person in the same manner as if he were sane. Love v. Merrill, 165 Mich. 503, 130 N.W. 1123, 1124; Johnson v. Pomeroy, 31 Ohio St. 247, 248; Noel v. Modern Woodmen of America, 61 Ill. App. 597, 600; Sternbergh v. Schoolcraft, 2 Barb. (N.Y.) 153, 155. The existence of the guardianship did not take away the defendant's legal capacity to be served with the summons. Ingersoll v. Harrison, 48 Mich. 234, 12 N.W. 179. At common law, process is to be served upon a lunatic personally. Van Horn v. Hann, 39 N.J. Law, 207, 213; Stoner v. Riggs, 128 Mich. 129, 87 N.W. 109, 110. In Potter v. Wright, Brayton, 21, it was held that in an action of trespass against a minor, the writ will not abate because the guardian of the minor was not notified, thus impliedly recognizing the principle stated above.
It may be remarked that G.L. 3694, providing that a writ or execution shall not be issued against a ward for a debt while he is under guardianship, has no application because a petition for support under G.L. 3600 is not a writ for a debt within the meaning of the statute.
The plaintiff argues that the motion to dismiss is defective, but since it does not appear by the record that this question was raised below it is not for consideration here. Temple et ux. v. Atwood, 100 Vt. 371, 372, 137 A. 321; Picknell v. Bean, 99 Vt. 39, 40, 130 A. 578; State v. Fairbanks, 101 Vt. 30, 39, 139 A. 918, and cases cited. No error appears.
Judgment affirmed.
NOTE. — WATSON, C.J., having deceased, took no part in the above decision.