Ames v. Williams

• Decision Date: 12 January 1895
• Court: Mississippi Supreme Court
• Parties: SARAH J. AMES ET AL. v. BRYANT G. WILLIAMS ET AL

17 So. 762

72 Miss. 760

SARAH J. AMES ET AL. v. BRYANT G. WILLIAMS ET AL

Supreme Court of Mississippi

January 12, 1895

FROM the chancery court of Noxubee county, HON. T. B. GRAHAM Chancellor.

The opinion states the case.

Affirmed.

Mayes &amp Harris and C. B. Ames, for appellants.

It is not necessary, in this case, to discuss any general propositions in respect to the power of the chancery court to appoint guardians for minors, nor whether, in ordinary instances, the residence of the minor in the county constitutes a jurisdictional fact. All these questions are excluded by the fact that § 2117, code 1880, the law of the special instance, provides its own terms and fixes beyond cavil, the facts of jurisdictional nature. The power of the state to appoint a guardian to a minor is one of those powers which the state exercises through its legislature, as parens patrioe, over all persons non sui juris. The state, of course, must operate through an agent, and § 2117, code 1880, indicates not only the conditions of fact under which the appointments are to be made, but also designates the agency through which they are to be made. The words "chancery court of the county in which such minor resides" are the terms by which the state designates its agent to make such appointment. None other than the agent so named can execute the power. It must be made by a certain chancery court--that is, the chancery court of the county in which the minor resides. In making the appointment in question, the chancery court is exercising a power conferred by statute in derogation of the common law, and the instance under consideration comes squarely within the rule laid down in Marks v. McElroy, 67 Miss. 545. See, also, Blake v. McCarthy, 56 Ib., 654; Tell v. Stiles, 60 Ib., 849; Railway Co. v. Blythe, 69 Ib., 939. Even if it be true that the jurisdiction over minors under the law is not a special jurisdiction, it is clear that the jurisdiction for the appointment of the chancery clerk is special within the purview of the decision in Marks v. McElroy, supra. It is wholly statutory and unprecedented. The true rule is, that, if the court be one exercising a special jurisdiction, the record must affirmatively show the jurisdictional facts, or its decrees will be void; but, if it be a court of general jurisdiction, and its decree recites or adjudicates the jurisdictional facts, such recital or adjudication is conclusive, and cannot be controverted, except by the record itself; but if, on the other hand, the decree contains no such recital, there is a presumption that the jurisdictional facts did exist, but that presumption is not conclusive either on parties or privies, but may be rebutted by extrinsic testimony. In support of the position herein contended for, see Root v. McFerrin, 37 Miss. 17; Swain v. Gilder, 61 Ib., 667; Duncan v. Gerdine, 59 Ib., 550; Railway Co. v. Bolding, 69 Ib., 255. See, also, Windsor v. MeVeigh, 93 U.S. 274; Scott v. McNeal, 154 U.S. 34.

The decrees appointing the guardian undertake, in this case, to settle the jurisdictional facts, and recite that it appears to the court a guardian was necessary, and that no one except the clerk would serve. We invoke the doctrine mentio unius exclusio alterius est. The decrees, on their face, indicate that the court did not adjudicate the residence of the minors. In support of our position that, the jurisdictional facts not appearing, the decree is void, see Herring v. Goodson, 43 Miss. 392; Farrer v. Clarke, 29 Ib., 195; Duke v. State, 57 Ib., 229; Roberts v. Rogers, 28 Ib., 152.

Even if the decree be conclusive upon the parties and their privies, it does not conclude appellants, whose ancestor was not a party to the proceeding, but a mere surety on Mr. Patty's bond as chancery clerk. Sureties of officers are not parties to proceedings against them. Lipscomb v. Postell, 38 Miss. 476; State v. Hull, 53 Ib., 626; Williams v. Flippin, 68 Ib., 680.

J. E. Rives, for appellees.

The chancery court had general jurisdiction over minors, and, therefore, all its orders and decrees are presumed to be valid, unless the record itself shows them to be void. Where the record shows jurisdiction, such decrees can be successfully attacked only by allegation and proof of fraud. The plea in this case admitted the existence of the record, but contradicted its truth, which was not allowable. Westbrook v. Munger, 62 Miss. 324. In Duke v. State, 57 Miss. 231, a decree of appointment by the probate court was held void only on the ground that the record itself showed that the court did not have jurisdiction. As to the conclusive effect of the decree as to jurisdiction, see 5 Smed. & M., 210; 8 Ib., 421; Mandeville v. Stockette, 28 Miss. 398; Pollock v. Buie, 43 Ib., 140; Cannon v. Cooper, 39 Ib., 790; Logan v. Brown, 44 Ib., 245. The record does not affirmatively show that the minors resided in Noxubee county, the court having general jurisdiction of the subject-matter, that fact is bound to have been passed upon by the court in making the appointment; it is, therefore, necessarily res judicata. Weir v. Monahan, 67 Miss. 434; McClure v. Commonwealth, 80 Pa. 167. Prior to the code of 1880, the court could not enforce the guardianship upon its clerk. Notwithstanding its general jurisdiction over the subject-matter, the court could not appoint a guardian unless some one would apply.

Section 2097, code 1880, made it the duty of the court, in counties in which minors have property, whether they reside in that county or not, to appoint a guardian for them if none have been previously appointed. . . Section 2117 made it the duty of the courts to appoint the clerk when no one else would apply. Construing the two sections together, it became the duty of the court to appoint a guardian for each minor, either in the county in which he resides or in the county in which he had property. The minors in this case resided in another county but had estate in Noxubee county, and the appointment was valid.

Argued orally by E. Mayes, for appellant, and J. E. Rives, for appellees.

OPINION

COOPER, C. J.

Robert C. Patty was the clerk of the chancery court of Noxubee county, and C. B. Ames was one of the sureties on his official bond. Both Patty and Ames are dead. Patty, as clerk of the chancery court of Noxubee county, was appointed by that court guardian to the appellees, and their estates went into his hands. This is a proceeding instituted by the appellees in the said chancery court, against the representatives of Patty and Ames, praying that Patty's administrator may he required to settle the accounts of the guardian, and that, for any sums found to be due, proper decrees may be made against the representatives of Patty and Ames. The appellants, representatives of Ames, pleaded that there never was any valid appointment of Patty as guardian, because, at the time the supposed appointment was made, the appellees were not residents of the county of Noxubee, but resided in the county of Lowndes, by reason whereof the chancery court of Noxubee county was without jurisdiction to appoint the clerk of the chancery court of that county their guardian. On this plea issue in short by consent was taken, which on the hearing was found in favor of the appellees.

By § 2117, code 1880, it was provided that "if no one will qualify as guardian of a minor who has property, and is in need of a guardian, it shall be the duty of the chancery court of the county in which such minor resides to appoint the clerk of such court to be the guardian of such minor, who shall discharge the duties of guardian to such minor according to law, and under the orders and directions of the chancery court, and subject to be dealt with as for a contempt for any failure so to do; but he shall not be required to give bond as guardian in such case, and his official bond shall cover his liability as such guardian, and he shall be bound and liable in all respects as any other guardian." On the twenty-sixth of April, 1886, George M Gilmore, who was the uncle of all the minors, the present appellees, presented his petitions to the chancery court of Noxubee county, praying to be appointed guardian of their persons and estates. In his petitions for guardianship of the appellees, Bryant G. Williams and George M. Williams, the petitioner stated that they were children of "Andrew M. Williams, late of said county, now deceased." In the petitions for the guardianship of George G. Williams and Andrew M. Williams, they are described as the children of "the late Andrew M. Williams," and it is stated that they "now reside in said county." On the twenty-eighth of April the petitioner filed other petitions, one in reference to each minor, in which he recited that he had theretofore prayed to be appointed as guardian of said minor, and he made his former petition a part of the later one, but that he had reconsidered the matter and determined not to accept the guardianship; that no one else would accept the guardianship, and that the infants had estates which required attention. He therefore prayed the court to appoint its clerk, Robert C. Patty, as guardian to said infants. On the twenty-ninth of April the court appointed Patty guardian of each of said minors, the order in each case being the same. One only is set out in this opinion. It is as follows: "The guardianship of Bryant G. Williams: In the matter of the petition of George M. Gilmore for appointment of Robert C. Patty, clerk of this court, as guardian of said minor. The same being considered, and it appearing that the appointment of a guardian is necessary, and that no one will qualify, it is, therefore, ordered that said petition be granted, and that Robert C. Patty, clerk of this court, be, and he is hereby, appointed...