Bond of guardian ad litem for infant plaintiff in partition. consent of said C. D. to act as such guardian, [and it being made satisfactorily to appear to the court that said C. D. is a competent and responsible person,] ORDERED That C. D., Esq., of , be and he hereby is appointed guardian ad litem of A. B., infant above named, and authorized to prosecute for him as such guardian, the action mentioned in the annexed petition (add if such action is for the partition of land), on his executing to the people of this State, and duly acknowledging and filing, a bond in the penalty of dollars and with sureties, to be approved by a justice of this court, conditioned for the faithful discharge of the trust committed to such guardian, and to render a just and true account of his guardianship, in all courts and places when thereunto required.) Bond of Guardian ad litem for Infant plaintiff in Partition. Know all men by these presents, that we, C. D., of attorney, and E. L., physician, and G. K., merchant, of the same place, are held and firmly bound unto the people of the State of New York, in the penal sum of dollars, for which sum well and truly, be paid, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 18 Whereas, by an order made by the day of , 18 at day of court on the said C. D. was appointed guardian ad litem of A. B., infant, of , to conduct, on the part of said infant, proceedings to be instituted on his behalf, for a division and partition, or sale of the real estate, mentioned in the petition upon which said order was made, said guardian being required to give security. Now, therefore, the condition of this obligation is such that if the said E. F. shall faithfully discharge the trust committed to him as such guardian, and render a just and true account thereof in all courts and places when thereunto required, then this obligation to be void, otherwise to remain in full force Sealed and delivered in presence of (Signatures and Seals.) Acknowledgment and justification. Approval to be indorsed on the bond. I approve of the within bond, as to the form and manner of execution, and as to the sufficiency of the sureties. (Date.) (Signature of Judge.) Section 14. Amending summons. The power of amending process in any case does not originate in the Code, but is a power existing in the court, independently of any legislative Amending summons. enactment. Lane v. Beam, 19 Barb. 51; S. C., 1 Abb. 65. It is, however, provided by the Code, that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect. Code, § 173. But a summons can be amended only upon leave of the court. The power of amending once, as of course, conferred on parties to an action by section 172 of the Code, relates to pleadings, and not to process. Walkenshaw v. Perzel, 32 How. 310; S. C., 7 Rob. 606; 5 id. 648; Gray v. Brown, 15 How. 555; Allen v. Allen, 14 id. 248; McDonald v. Walsh, 5 Abb. 68; Follower v. Laughlin, 12 id. 105; Diblee v. Mason, 1 Code R. 37; S. C., 6 N. Y. Leg. Obs. 363. How far the court may correct a mistake in the name of a party has been discussed under misnomer. § 6, art. 2, ante, 473. It is a general rule that mere errors in form can be amended on application to the court, and on such terms as are just. Lane v. Beam, 19 Barb. 51; S. C., 1 Abb. 65; Code, § 173. But the rule goes no further. The court cannot, by amendment of a process which was insufficient to confer jurisdiction, render such void process valid. In other words, jurisdictional defects cannot be cured by amendment. Farnham v. Hildreth, 32 Barb. 277; Moulton v. de ma Carty, 6 Rob. 470; Hoffman v. Fish, 18 Abb. 75; Cole v. Hindson, 6 Term R. 234; Cook v. Farren, 34 Barb. 95; S. C., 21 How. 286; 12 Abb. 359; Hallett v. Righters, 13 How. 43; Kendall v. Washburn, 14 id. 380. Neither can the court allow any amendment which will substantially change the nature of the plaintiff's claim. Code, § 173. Thus, a plaintiff cannot, by an amendment of the summons, change an action for a claim due to the plaintiff in a representative character to an action for a claim due him as an individual. Blanchard v. Strait, 8 How. 83. Nor can he, after commencing his action as an individual, change it into an action for a claim held by him in a representative character. McMahon v. Allen, 12 How. 39; S. C. affirmed, 3 Abb. 89; 1 Hilt. 103. Nor can a cause of action for a tort be changed to an action for a breach of contract. Springstead v. Lawson, 23 How. 302; 14 Abb. 328. See Wait's Code, 459 (p). See Names and Character of Parties, art. 2, § 4, ante, 469. But the court may amend the summons by inserting the name of the court, when omitted through inadvertence; or correct Amending summons. any other mistake if the defendant has not been misled or prejudiced thereby. Tallman v. Hinman, 10 How. 89. See Title, art. 2, § 2, ante, 468. Amendments are freely allowed where they become necessary from facts and circumstances unforeseen and unknown at the time of the commencement of the action. Thus, where new parties have been brought in by an amendment of the complaint, an amendment of the summons becomes a matter of necessity, and is granted on application to the court almost as of course. Follower v. Laughlin, 12 Abb. 105; Walkenshaw v. Perzel, 32 How. 310; S. C., 7 Rob. 606; 5 id. 648. So, where, since the commencement of an action for a single and entire demand, by the service of a summons demanding judgment for a specified sum, the plaintiff discovers that his cause of action is greater than he supposed, and entitles him to demand a larger sum, he may, on application to the court, amend his summons by inserting the sum to which he is entitled in the demand for judgment. Deane v. O'Brien, 13 Abb. 11. So, where a plaintiff has inadvertently framed his summons under the wrong subdivision of section 129 of the Code, he will be allowed to change the form of the notice of judgment, on terms. Champlin v. Deitz, 37 How. 214; Willet v. Stewart, 43 Barb. 98; McDonald v. Walsh, 5 Abb. 68. But where the plaintiff deliberately and intentionally frames his notice of judgment under the wrong subdivision, for the purpose of thereby gaining an unfair advantage over the defendant, the court will deny the privilege of amendment. Lane v. Beam, 19 Barb. 51; S. C., 1 Abb. 65. The subscription of the summons may be amended even after judgment. Sluyter v. Smith, 2 Bosw. 673. So, where the summons states that the complaint is annexed, when such is not the fact, the defect may be cured by amendment. Keeler v. Belts, 3 Code R. 183. The power to amend in respect to any irregularity in the form of a summons has been pointed out in connection with the discussion of the requisites of a summons in the preceding article. From the illustrations given it will be seen that nearly every possible defect in the form of a summons has been made the subject of amendment, and that the only limit to the power to amend is that discretionary power vested in the court for the protection of the rights of the adverse party. From the exercise of this discretionary power there is no appeal. Tallman v. Hinman, 10 How. 89. Except in cases of misnomer, where the objection must be taken by answer, all amendments to a summons must Notice of no personal claim Contents of the notice. be obtained upon motion; and, when the defendant has appeared generally in the action, it must be upon at least eight days' notice. Code, §§ 413, 414. But if the defendant has not appeared in the action the motion may be made ex parte. If the amendment is allowed, copies of the amended summons should be served on all the parties defendant, or their attorneys. ARTICLE IV. NOTICE OF NO PERSONAL CLAIM. Section 1. When such notice is proper. In actions for partition, and for the foreclosure of mortgages on real estate, it frequently becomes necessary to serve process on defendants, against whom no personal claim is made, and who have no material rights to defend. In all such cases, where there are, usually, numerous defendants, many of whom would not embarrass the progress of the action by an appearance, if its object were understood at its commencement, a notice of no personal claim served with the summons will obviate the necessity of such appearance, and will also save the plaintiff the useless labor, otherwise obligatory, of serving notices of all subsequent proceedings on defendants who have no interests or rights to protect. This notice, though originally intended to be confined to the two classes of cases before mentioned, has by amendment been extended to all other actions. The notice of no personal claim is proper wherever no reasonable defense can be interposed to the demands of the plaintiff, and where no rights or interests of the defendant would be invaded or jeopardized by the allowance of such demands. In no case can it be made a means of perpetrating a fraud, because, whenever it appears that a plaintiff seeks under this notice to deprive a defendant of a substantial right, the courts will declare all such proceedings void ab initio. Section 2. Contents of the notice. The notice must be subscribed by the plaintiff or his attorney, and should set forth the general object of the action, giving a brief description of the property affected by it, if it affects specific real or personal property, and should notify the defendant that no personal claim is made against him. Code, § 131. It was the intention of the legislature, that this notice should contain, in a condensed form, Notice of no personal claim- - Costs if defendant unreasonably defend. " the substance of those long complaints which were formerly in use in suits in partition, or, for the foreclosure of mortgages. The notice is a substitute for the complaint, and renders service of a complaint unnecessary, unless, within the time for answering, the defendant makes a written demand for it. Code, § 131. Notice of no Personal Claim. (Title of Cause.) To James Camp, one of the defendants above named : SIR: Take notice that the object of this action, in which a summons is herewith served upon you, is (to foreclose a mortgage executed by and day of 18 for the sum of 18 on the , on the his wife, to which mortgage was recorded in the office of mortgages, page upon the following described premises, (Signature.) Section 3. Costs if defendant unreasonably defend. It is optional with the plaintiff whether to serve the notice, or the complaint, or whether he will elect to omit the service of both. The notice is no part of the process for the commencement of the action, and is in no case essential to the cause. Gallagher v. Egan, 2 Sandf. 742. "But if a defendant on whom such notice is served unreasonably defend the action, he shall pay costs to the plaintiff. Code, 131. If a defendant, on whom a summons has been served unaccompanied by a notice of this nature, should employ an attorney and demand a copy of the complaint, he could, undoubtedly, recover all taxable costs before notice of trial. But this clause which declares that, if the defendant unreasonably defend the action, he shall pay costs to the plaintiff, adds no new liability to such defense, as that rule previously existed in all equitable actions independent of the service of a notice of no personal claim. See O'Hara v. Brophy, 24 How. 379. The service of this notice would, however, preclude all possibility of the recovery of costs by the defendant previous to the notice of trial. Where the complaint is served with the summons, it has the same effect as the service of the notice, and further service of such notice is unnecessary. O'Hara v. Brophy, 24 How. 383. It was formerly held that no fixed fees |