People v. M. Hoffman
New York Supreme Court
Motion for a mandamus. A suit was commenced by the relator in the common pleas of Herkimer, against J. & H. Miller, by the filing and service of a declaration.
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Motion for a mandamus. A suit was commenced by the relator in the common pleas of Herkimer, against J. & H. Miller, by the filing and service of a declaration. J. Miller appeared and pleaded, H. Miller did not appear, and on proof being made that he was an infant, within the age of 21 years, an order was granted by the first judge of Herkimer, on the application of the plaintiff, for the defendant to shew cause in 10 days, why a guardian should not be appointed to appear and defend for him. In pursuance of this order, he appeared by counsel, and insisted, that not having been arrested on…
1Opinion of the Court
By the Court,
Savage, C. J.
The proceeding by declaration is inapplicable in a suit against an infant. Where a suit is commenced by declaration, the statute allows, on proof of its personal service on the defendant, that his appearance may be *490entered by,.the clerk of the court, in the same manner as if he hacl endorsed his appearance on a capias; and his default may be entered for not pleading, and the same proceedings had against him, in all respects, as if he had appeared. 2 R. S. 347, § 2. This provision cannot apply to an infant, for where he endorses his appearance on a capias, it cannot…
2Cited by1 opinion
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