Coppedge v. Clinton

• Decision Date: 28 July 1934
• Docket Number: No. 1034.,1034.
• Citation: 72 F.2d 531
• Parties: COPPEDGE v. CLINTON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

72 F.2d 531 (1934)

COPPEDGE v. CLINTON et al.

No. 1034.

Circuit Court of Appeals, Tenth Circuit.

July 28, 1934.

W. V. Pryor, of Sapulpa, Okl., for appellant.

Creekmore Wallace, of Oklahoma City, Okl. (Tom Wallace, of Sapulpa, Okl., and Wayne H. Lasater, of Dallas, Tex., on the brief), for appellees.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

PHILLIPS, Circuit Judge.

From April 27, 1923, to May 12, 1928, Coppedge was guardian of the person and estate of Wilson Clinton, an incompetent full-blood Creek Indian, under appointment of the county court of Creek County, Oklahoma. On the latter date Coppedge resigned as such guardian.

On May 14, 1928, the American National Bank of Bristow, Oklahoma, was appointed by the county court of Creek County, as guardian of Wilson Clinton.

On May 12, 1928, Coppedge filed his final report in which he set forth receipts aggregating $261,768.10, and credits totaling $263,000. Wilson Clinton filed exceptions to such report in which he challenged certain specific items claimed as credits by Coppedge aggregating $147,604.47.

On February 14, 1931, Wilson Clinton by his next friend Cubah Clinton commenced this suit against Coppedge for an accounting. Creekmore Wallace was appointed guardian ad litem for Wilson Clinton.

The complaint alleges that Wilson Clinton is a resident and citizen of Garland County, Arkansas. It omitted any allegation as to the citizenship of Coppedge. The answer of Coppedge denied that Wilson Clinton was a citizen of Arkansas. The court found that at the time this suit was commenced, Wilson Clinton was a resident and citizen of Arkansas, and that Coppedge was a resident and citizen of Oklahoma.

By a supplemental answer, Coppedge alleged that on February 2, 1932, the county court of Creek County entered a judgment upon the exceptions to such final report in which it determined "all the issues in controversy herein," and that such judgment "is res adjudicata of all such issues and a bar to further action in this court herein."

At the trial of the instant case, Coppedge offered in evidence a purported judgment of the district court of Creek County on appeal from a judgment of the county court of that county, which district court judgment sustained the exceptions to items aggregating $33,818, and in all other respects approved the report. The district court judgment had not been pleaded by Coppedge. The trial court rejected the offer on the ground that the district court judgment was not a bar under the doctrine of res judicata, because an appeal therefrom was then pending in the supreme court of Oklahoma.

This is another of those all too common cases in Creek County where a white guardian has looted the estate of his Indian ward. The findings of the trial court established gross frauds and flagrant breaches of trust on the part of Coppedge in the administration of his ward's estate. The trial court concluded that Coppedge should account for items aggregating $86,971.96, less $30,000 paid Wilson Clinton on December 16, 1932, by the United States Fidelity & Guaranty Company as surety on the guardianship bond of Coppedge, and gave judgment against Coppedge for $56,971.96 with interest at 6% from September 6, 1933.

Coppedge contends that the court was without jurisdiction because the requisite diversity of citizenship was lacking. He asserts that Wilson Clinton, being an incompetent domiciled in Oklahoma, could not change his domicile and citizenship to Arkansas.

The evidence established that Wilson Clinton moved to Arkansas shortly before the suit was filed, with the consent of his guardian, but without the formal consent and approval of the county court of Creek County.

Section 6587, C. O. S. 1921, provides that a guardian "may fix the residence of the ward at any place within the State, but not elsewhere, without permission of the court." Laughlin v. Williams, 76 Okl. 246, 185 P. 104, 105.

Whether an incompetent may change his domicile depends on the extent to which his reason is impaired. A comparatively slight degree of understanding is required.¹ It is sufficient if he understands the nature and effect of his act. Whitford v. Kinzel, 90 Neb. 573, 133 N. W. 1124; Concord v. Rumney, 45 N. H. 423, 428; Conflict of Laws, Minor, p. 107.

Where a person has been adjudged an incompetent and placed under the care and control of a guardian or committee, a presumption arises that he has not sufficient mental capacity to change his domicile, but the presumption may be rebutted by satisfactory proof that he possesses the requisite mental capacity.

Mr. Minor, in his work on Conflict of Laws at page 108, says:

"The true principle therefore would seem to be that a lunatic, whose person has been placed under the control of a guardian or committee, is prima facie incompetent to establish a domicile in another State, but, upon satisfactory proof of mental capacity supervening, such domicil may be recognized."

See, also, Mowry v. Latham, 17 R. I. 480, 23 A. 13; Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254; In re Fidelity Trust Co. of Newark, 37 Misc. 118, 57 N. Y. S. 361; Sumrall's Committee v. Commonwealth, 162 Ky. 658, 172 S. W. 1057, 1058.

In Laughlin v. Williams, supra, the court held that section 6587, supra, regulates changes in domicile within the state by an incompetent under guardianship, and that such an incompetent may not effectually change his domicile within the state without the knowledge or consent of his guardian. We set out the pertinent portions of the opinion in Note 2.²

It would seem to follow from this decision that the statute undertakes to inhibit such an incompetent from changing his domicile from within to without the state, except with the permission of the court having jurisdiction of the guardianship.

But a person not under legal restraint, who has reached his majority and possesses the requisite mental capacity, may change his domicile at will. The right to change one's domicile is a natural right. Cornelison v. Blackwelder, 38 Okl. 1, 131 P. 701; McGill v. Miller, 183 Ark. 585, 37 S.W. (2d) 689, 691; Seibold v. Wahl, 164 Wis. 82, 159 N. W. 546, Ann. Cas. 1917C, 400; Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L. R. A. (N. S.) 1159; Boyd v. Commonwealth, 149 Ky. 764, 149 S. W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481; In re Newcomb's Estate, 192 N. Y. 238, 84 N. E. 950. See, also, Slaughter House Cases, 16 Wall. 36, 80, 21 L. Ed. 394; United States v. Wheeler, 254 U. S. 281, 293, 41 S. Ct. 133, 65 L. Ed. 270; Paul v. Virginia, 8 Wall. 168, 180, 19 L. Ed. 357; Marcus Brown Holding Co. v. Pollak (D. C. N. Y.) 272 F. 137, 141.

Therefore, if Wilson Clinton actually removed from Oklahoma to Arkansas, and with the requisite mental capacity formed the settled intent and purpose to remain in the latter state indefinitely, and took up his actual residence there, we fail to see how the laws of Oklahoma could have extra-territorial force and effect, and prevent him from acquiring a domicile in Arkansas.

The burden was upon Wilson Clinton to establish that he had sufficient mental capacity to adopt a new domicile in Arkansas. The record sets forth no evidence with respect to the mental capacity of Wilson Clinton; and we must presume that he lacked the mental capacity to establish a new domicile, until the contrary is shown.

Coppedge contends that the matters involved were probate in character and committed exclusively to the jurisdiction of the county court of Creek County, and therefore the trial court did not have jurisdiction over the subject-matter. But the matters involved were not purely probate in character; the ward charged fraud on the part of his former guardian and sought an accounting, and the suit was inter partes.

A court of equity has inherent jurisdiction of suits by wards against their guardians for an accounting and settlement. This is especially true where the ward alleges fraud on the part of the guardian. Schindler v. Spackman (C. C. A. 8) 16 F.(2d) 45, 48; Chapman v. American Surety Co., 261 Ill. 594, 104 N. E. 247, 251; Pomeroy's Equity Jurisprudence (4th Ed.) Vol. 3, § 1097; Vol. 4, §§ 1420-1; Vol. 1, § 280, p. 523; Vol. 5, § 2358.

The fact that the county courts of Oklahoma may exercise a like jurisdiction,³ does not deprive a federal court of equity of jurisdiction in a suit brought by a ward against his guardian for an accounting. Waterman v. Canal-La. B. & T. Co., 215 U. S. 33, 43, 30 S. Ct. 10, 54 L. Ed. 80; McClellan v. Carland, 217 U. S. 268, 281, 30 S. Ct. 501, 54 L. Ed. 762; Hall v. Cottingham (D. C. S. C.) 55 F. (2d) 659, 660, 663; O'Connor v. Slaker (C. C. A. 8) 22 F. (2d) 147, 149.

Finally, Coppedge contends that the court erred in not admitting the judgment of the district court of Creek County.

Whether, pending an appeal, a judgment has the essential characteristics of finality to constitute it an estoppel under the doctrine of res judicata, is a question upon which the courts are not in accord. Freeman on Judgments (4th Ed.) vol. 1, § 328.

In certain jurisdictions it is held that, pending an appeal, a judgment lacks that character of finality which is requisite to constitute it an estoppel.⁴

In other jurisdictions it is held that the pendency of an appeal from a final judgment does not prevent such judgment, so long as it remains unreversed and unmodified, from being pleaded and proved as an estoppel.⁵

In City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186, 191, the court said:

"The contention of counsel that the judgment in favor of the defendant in the case of the plaintiff against the traction company is a bar to this action cannot be sustained for the additional reason that the record discloses by stipulation that such judgment had not become final when this case was tried, as an appeal therefrom had been taken by the plaintiff to this court. The rule in such cases is found in Black on Judgments, vol. 2, § 510, and is as follows:

"`In many...