Dorr v. Davis

• Decision Date: 09 June 1884
• Parties: JOHN DORR v. LUTHER DAVIS.
• Court: Maine Supreme Court

76 Me. 301

JOHN DORR v. LUTHER DAVIS.

Supreme Judicial Court of Maine.

June 9, 1884

ON REPORT.

Assumpsit on the following note:

" $209. Wellington, January 24, 1871.

For value received I promise to pay Harrison Dorr, or his order as guardian of Warren Dorr and Rosetta Dorr, two hundred and nine dollars, the first day of January, A. D. 1874, with interest annually.

David Davis,

Witness, E. F. Harvey. Luther Davis."

[Stamp, 15 cts.] Indorsed, " Harrison Dorr."

Writ dated August 8, 1874. Plea, general issue, and brief statement that plaintiff has no title in or to the note; and also that the note has been paid by defendant to Nancy A Smith, the legal guardian of Rosetta Dorr, to whom said note belonged.

The action was reported to the law court, who were to draw inferences as a jury might, and enter such judgment as the law required.

The opinion states the material facts.

Josiah Crosby, for the plaintiff.

D. D. Stewart, for the defendant, contended that the language of the note and the fact that the consideration came fro the ward and not from the guardian, made the ward the legal payee, and, therefore, the note was not legally indorsed, and the plaintiff had no title to it, and could maintain no action upon it. Gilmore v. Pope, 5 Mass. 491; Conkey v. Kingman, 24 Pick. 115; Railroad Co. v. Benedict, 5 Gray 561; Trustees v. Parks, 1 Fairf. 441; State v. Boies, 2 Fairf. 474; Garland v. Reynolds, 20 Me. 45; Turnpike Co. v. Whiting, 10 Mass. 327; Whitney v. Wyman, 101 U.S. 395; Nichols v. Frothingham, 45 Me. 220; Bank of Newbury v. Baldwin, 1 Cliff. 519; Irish v. Webster, 5 Me. 171; Sanford v. Phillips, 68 Me. 432.

Creditors of the ward may attach the property of the ward, notwithstanding it is under control of the guardian, or it may be levied on execution; and it may be reached by trustee process. Hicks v. Chapman, 10 Allen 463; Spring v. Woodworth, 4 Allen 327; Bancroft v. Consen, 13 Allen 50; Trull v. Trull, 13 Allen 407; Field v. Schieffelin, 7 Johns. Ch. 150; Smith v. Ayer, 101 U.S. 320; Carter v. Bank, 71 Me. 448; Wood v. Dummer, 3 Mason 312.

If a creditor is entitled to take it, certainly a new guardian must be. The functions and powers of the old one cease instantly upon the appointment of a new one. Burgess v. Keyes, 108 Mass. 43; Atkinson v. Atkinson, 8 Allen 15; Conant v. Kendall, 21 Pick. 38.

The appointment of the new guardian, Mrs. Smith, was in all respects legal and valid, and all power of Harrison Dorr, the first guardian, ceased on that day as fully and completely as if he were dead, " terminated by operation of law." Mansur v. Pratt, 101 Mass. 62; Woodbury v. Hammond, 54 Me. 343; R. S., c. 67, § 2.

HASKELL J.

The judge of probate for the county of Piscataquis appointed Harrison Dorr guardian for two minors under the age of fourteen years, resident in that county. Soon after this appointment, one of the minors, Rosetta, went to live with her aunt in the county of Somerset. When this minor arrived at the age of fourteen, she applied to the judge of probate for the county of Somerset, to appoint the aunt with whom she lived her guardian. The judge, acting upon this nomination, appointed Nancy A. Smith, the aunt, guardian for Rosetta, and issued to her letters of guardianship. The latter guardian, thereupon, demanded of the first guardian the estate of Rosetta in his hands, which he refused to surrender, but retained it until Rosetta was married, and then, having settled his account in the probate court, paid the balance to Rosetta with the assent of her husband, and took her receipt for the same.

At the time of the demand upon the first guardian by the second, the former had in his possession, belonging to Rosetta, the note in suit, which he afterwards negotiated to the plaintiff. The defendant, prior to the commencement of this suit, had paid the note to the second guardian, and now claims that payment was to the lawful owner of the note, and that the plaintiff took it with notice that it was the property of Rosetta, and could only be collected by her guardian in the county of Somerset, to whom he had paid the same.

Harrison Dorr became the legal guardian of Rosetta, a minor resident in the county of Piscataquis. To him the statute gave the care of the person and education of Rosetta, unless she had a parent living competent to do it. The case shows her father was dead and that his widow survived him, but it does not appear that the widow was the mother of Rosetta. The inference is, that her mother was not living. The care and education of Rosetta devolved upon Harrison Dorr, her guardian. Coltman v. Hall, 31 Me. 196; Peacock v. Peacock, 61 Me. 211.

Under these circumstances, Rosetta could not acquire a residence in the county of Somerset, while living there with her aunt, that would oust the judge of probate for Piscataquis of jurisdiction in the premises, which he had already acquired and lawfully exercised. She remained in Somerset by the permission of her guardian, who could at any time have taken her from that county and provided for her a home in the county of Piscataquis. It is unreasonable to hold, that a minor, allowed by a guardian to live in another county from that in which he was appointed, could meanwhile acquire a residence, that could defeat the authority of her guardian over her.

Moreover, when a court once acquires jurisdiction over a cause, it cannot be divested of it by a change in residence of any of the parties. Morgan Heirs v. Morgan, 2 Wheat. 290, 297; Mollan v. Torrance, 9 Wheat 537; Dunn v. Clarke, 8 Peters 1; Clarke v. Mathewson et al. 12 Peters 171.

A minor, who is over fourteen...