Carolina v. Montgomery

• Decision Date: 07 January 1919
• Docket Number: Case Number: 8697
• Citation: 177 P. 612,1919 OK 1,74 Okla. 121
• Parties: CAROLINA v. MONTGOMERY.
• Court: Oklahoma Supreme Court

1919 OK 1

177 P. 612

74 Okla. 121

CAROLINA v. MONTGOMERY.

Case Number: 8697

Supreme Court of Oklahoma

Decided: January 7, 1919

Syllabus

¶0 1. Judgment--Collateral Attack.

Where the judgment roll is regular upon its face, and contains the necessary jurisdictional averments, the same cannot be collaterally attacked.

2. Guardian and Ward--Appointment of Married Woman--Collateral Attack.

The appointment of a married woman as guardian of her child is voidable, but not void and the illegality of such appointment cannot be shown upon collateral attack.

3. Appeal and Error--Assignment of Error.

The assignment of error that the court erred in not rendering judgment for the defendant presents no question for review by this court.

4. Appeal and Error--Rulings on Evidence--Record.

Where the admission or exclusion of evidence is complained of, but such evidence is not set out in the brief, and the ground upon which such complaint is predicated is not stated, this court will not review the same.

5. Guardian and Ward--Sale of Ward's Land--Failure to File Bond.

The failure of a guardian to file the additional sales bond required to be filed prior to the sale of his ward's land under an order of court is not jurisdictional, and the failure to file such bond is a mere irregularity.

Error from District Court, Okfuskee County; Geo. C. Crump, Judge.

Action by Hunter Montgomery against Jenetta Carolina and others, Judgment for plaintiff, and defendants bring error. Affirmed.

J. L. Emerick, for plaintiffs in error.

C. T. Huddleston, for defendant in error.

COLLIER, C.

¶1 In this cause, Hunter Montgomery, hereinafter called plaintiff, commenced this action against Jenetta Carolina, nee Sango, hereinafter styled defendant, to quiet his title to certain real estate described in the petition. It was stipulated and agreed between the parties, as evidence in the case:

"That Jenetta Carolina, nee Sango, is the allottee of the land involved in this case, and that there was allotted to her, as part of her allotment as a Creek freedman, the north half of the southeast quarter of section 20, township 10 north, range 9 east, Okfuskee county, Okla. That the defendant is a minor. That August Bruner, is the present guardian of Jenetta Carolina, nee Sango, having been appointed by order of the county court of Seminole county, Okla. That Gracie Williams, nee Sango, is the living mother of the defendant. That Dick Sango, now deceased, was the father of the defendant. That Dick Sango died about 1903 or 1904. That thereafter, and prior to 1907 some time, Gracie Williams married Robert Williams, who is to this date her husband, and has so been her husband since said marriage. That on or about the 13th day of May, 1912, Gracie Williams, the mother filed in the county court of Okfuskee county, Okla., her petition, asking that she be appointed guardian of the defendant, who is a minor. That upon said petition Gracie Williams waived notice of hearing and entered her appearance, and that on that day an order was made appointing Gracie Williams guardian of the minor. That a bond in the sum of $ 300 was fixed for said guardian to make, and that such bond was made by Robert Bruner and Mary Bruner, as sureties, and filed in the county court May 30, 1912, and on which date letters of guardianship were issued by said county court to said Gracie Williams. That said bond is indorsed with reference to the approval thereof as follows: 'I hereby approve this bond this 27th day of May, 1912. [Seal.] W. A. Huser, County Judge.' That said guardian took the oath of office on May 13, 1912, which oath is attached to the letters of guardianship and filed therewith on May 30 1912, in the county court."

¶2 There was introduced in evidence the proceedings of the county court having jurisdiction of said minor's estate, as follows:

(1) Petition of the said guardian, Gracie Williams, to sell the lands in controversy for "the proper support and education of said ward, and in order that ward's real estate be not lost for the nonpayment of taxes, and that the proceeds of such sale not needed for the above reasons be invested to produce an income for the said ward."

(2) A decree of the court, made on the 1st day of July, 1912, the said day the petition was filed, authorizing Gracie Williams, as guardian of the estate of the said defendant, to sell the lands in controversy.

(3) Return by said guardian of the sale of said lands, showing that the said lands were sold to the plaintiff for the sum of $ .

(4) Order setting hearing of the return of sale of real estate, made on the 20th day of July, 1912 fixing the 30th day of July, 1912, for hearing the same; and

(5) Order confirming sale of real estate to plaintiff, made on the 30th day of July, 1912.

¶3 There was also introduced in evidence the additional bond required to be given by the guardian, which bond shows to have been executed upon the 20th day of July, 1912, approved on the 29th day of July, 1912, and filed on the 30th day of July, 1912. It was further in evidence that the verification of the petition for sale of said land was before the attorney, who was a notary public, who represented the guardian in said petition of sale.

¶4 There was also uncontradicted evidence that on the 30th day of July, 1912 the plaintiff drew a check payable to Gracie Williams, guardian, for the amount of $ 1,105, which check was paid on July 13, 1912, by the Okemah National Bank of Okemah, and that said money was deposited to the credit of Gracie Williams. There was other evidence in the case, which we deem unnecessary to recite for a proper decision of this case.

¶5 The court found for the plaintiff for the lands described in the petition, to which the defendant duly excepted. The defendant's motion for a new trial having been overruled and excepted to, the defendant perfected an appeal to this court.

¶6 The errors assigned are:

"(1) Overruling of plaintiff's motion for a new trial. (2) In not rendering judgment for defendant. (3) Ruling out competent evidence and legal testimony. (4) Holding that the county court of Okfuskee county had jurisdiction to appoint Gracie Williams, mother of plaintiff, as her guardian, notwithstanding said Gracie Williams was at the time a married woman. (5) In holding that the county court, on the 1st day of July, 1912, had jurisdiction to authorize said Gracie Williams, as guardian, to sell the lands of the said ward; there being, at the time said order was made, no petition for such sale was on file or before the county court. (6) That the said court erred in confirming said sale made by Gracie Williams as guardian of the defendant."

¶7 The second error assigned presents no question to this court for review.

"An assignment of error that the court erred in not rendering judgment for the defendant does not direct the court's attention to any fact showing cause for reversal, and presents nothing to this court for review." Connelly v. Adams, 52 Okla. 382, 152 P. 607; Nelson v. Reynolds et al., 59 Okla. 168, 158 P. 301.

¶8 The third error assigned does not point out the evidence complained of, and the grounds upon which the same is predicated, and hence will not be considered by this court. Connelly v. Adams, supra: First Bank of Maysville et al. v. Alexander, 49 Okla. 418, 153 P. 646.

¶9 The fourth error assigned presents the question as to the illegality of the appointment of a married woman as guardian of her minor child. It is earnestly contended by the defendant that such appointment is void, and with this contention we do not agree. We are of the opinion that an...