Dulion v. Folkes

• Decision Date: 15 October 1928
• Docket Number: 26989
• Citation: 153 Miss. 91,120 So. 437
• Court: Mississippi Supreme Court
• Parties: DULION et al. v. FOLKES et al. [*]

120 So. 437

153 Miss. 91

DULION et al. v. FOLKES et al. ^[*]

No. 26989

Supreme Court of Mississippi

October 15, 1928

Division A

Suggestion of Error Overruled Feb. 25, 1929.

APPEAL from chancery court of Harrison county., HON. V. A. GRIFFITH Chancellor.

Suits by Julia Abbey Dulion, by next friend, and by Ura C. Dulion against Mr. Thresa Lopez Folkes and others to cancel deed executed by each of complainants. The cases were deed executed, and, from decrees dismissing the bills, complainants appeal. Affirmed as to Ura Dulion, and reversed and remanded, with directions, as to Julia Abbey Dulion.

Affirmed as to Ura Dulion, and reversed and remanded as to Julia Abbey Dulion. Suggestion of error overruled.

Wells, Stevens & Jones and Mize, Mize & Thompson, for appellants.

The decree attempting to remove the disability of minority should have been set aside and declared null and void. The court had no jurisdiction to enter the decree because of the fact that she and all of the parties to the petition were nonresidents of Mississippi at the time the petition was filed and the petition failed to show on its face the jurisdictional fact that the petitioner was a resident of Harrison county Mississippi, which is jurisdictional.

The court will note that the petition to remove the disability of minority was sworn to February 2, 1924, and was filed February 5, 1924, and a decree entered attempting to remove the disability of minority on February 5, 1924. The petition was styled: "Julia Abbey Dulion, a minor, by Ura C. Dulion, her guardian and next friend, v. Roy Dulion and Fay Dulion Herrmann," and stated that petitioner would next show unto the court that she was a minor of the age of seventeen years and that her parents were dead. Then it avers that the two defendants named were nonresidents of Mississippi, but live in New York; that petitioner owned a one-sixth interest in certain real estate in Harrison county, which was inherited by petitioner and her five brothers and sisters; that the income from said real estate was small and that none of the parties who owned the same live in the state of Mississippi. Said petition nowhere averred just where the minor Julia Abbey Dulion lived, but it affirmatively averred that she was an owner of the property and that none of the parties owning same lived in the state of Mississippi, thereby showing affirmatively on its face that the minor nor any of her co-tenants, as brothers and sisters, resided in Mississippi. Prior to April, 1924, the chancery court had no authority to remove the disability of a nonresident minor but jurisdiction was conferred upon the chancery court to remove the disability of a minor only when the minor resided in the state of Mississippi and when in the chancery court of the county where the minor resided. See Sec. 300, Hem. Code 1917. Then secs. 301, 302, 303 and 304 provided what procedure should be followed, but in none of these sections did it confer upon the chancery court jurisdiction of a nonresident minor. This law was amended in 1918, but only with reference to the number of the kindred who should join in the petition to remove when the petition was ex parte. However, by chap. 158, Laws of 1924, sec. 314, Hem. Code 1927, the legislature conferred upon the chancery court the authority to remove the disability of minority where a nonresident minor owned property in Mississippi, but this act did not take effect until April 9, 1924. These statutes are very strictly construed, and every jurisdictional fact must appear upon the face of the petition and if it does not, then all of the proceedings are void. See Wilson v. McCorkle, 135 Miss. 625, 99 So. 366; Poole v. Jones, 136 Miss. 645, 101 So. 786; Hardy v. Pepper, 128 Miss. 27, 90 So. 181; Marks v. McElroy, 67 Miss. 545; Lake v. Perry, 95 Miss. 550. In other words, whenever the legislature provides that the chancery court shall have jurisdiction to remove the disability of minority, the proceedings set out by the legislature must be strictly followed and the party claiming under such a decree must show, without the aid of presumption, that the court had jurisdiction.

Watkins, Watkins & Eager, Rushing & Guice and John L. Heiss, for appellee.

We propose in dealing with the appeal of Miss Julia Abbie Dulion, to discuss the points relied on for reversal in the order in which the same are presented by the appellant's counsel. In brief of counsel the first point is as follows: "The court had no jurisdiction to enter the decree because of the fact that she and all of the parties to the petition were nonresidents of Mississippi at the time the petition was filed, and the petition failed to show on its face the jurisdictional fact that the petitioner was a resident of Harrison county, which is jurisdictional." We will endeavor to reply with as little prolixity as possible.

The original bill of complaint was not based upon any such ground, but was predicated and the trial had upon the theory that the appellant was an actual resident citizen of Harrison county, Mississippi. It is, of course, academic that the appellant, on appeal to this court, should present to this court the same case presented on the pleadings in the court below. This court cannot hear a case de novo. The case is before this tribunal on appeal. It can only examine the case tried by the chancellor in the court below and determine as to whether or not any reversible error was committed. The original bill of complaint in this case was filed in the chancery court of Harrison county, Mississippi, December 31, 1926. After having alleged, at the time she filed the bill of complaint in this case, that she was a resident of Harrison county, Mississippi, and having set out the alleged proceedings looking to removal of her disabilities, she alleges not that she was a nonresident of the state of Mississippi when said removal was had, but that she was in school in St. Louis, Missouri. Not only was it true that the original bill was predicated upon the idea that the appellant resided in Harrison county, Mississippi, February 8, 1924, but it sets out certain alleged imperfections in the proceedings removing her disabilities, which she asserts renders the same void. Nowhere in said bill does she allege, directly or indirectly, that she was not a resident of Harrison county, Mississippi, February 8, 1924, when the proceedings took place. Upon the other hand, the grounds of invalidity are entirely different and distinct.

It was not necessary to allege the residence of the appellant. Proceedings for the removal of disabilities of minority are statutory. Sec. 316, Hem. Code 1927; Sec. 644, Code 1906, is the only statute which provides what the petition shall contain and if Your Honors will place the petition for the removal of the disabilities of he minority by the side of this section, you will see that the same contains each and every allegation required by this section. If the legislature had intended to require the statement of the residence of the minor, such provision would have been made. The fact that the legislature did not require an allegation is conclusive as to its intention that the allegation was not jurisdictional. This court has never held in any case that it was necessary that the petition for removal of disabilities of the decree granting the relief show the residence of the minor. In Marks v. McElroy, 67 Miss. 545, 7 So. 408, the question was in the brief of counsel that the petition for removal of disabilities did not affirmatively show the residence of the minor, and a strong appeal was made in that case to have the proceedings declared invalid for that reason. This court held the proceedings invalid, but said that it did not appear from the record or elsewhere that the minor resided in the county where the decree was rendered.

In Lake v. Perry, 95 Miss. 550, 49, So. 569, the court declared the proceedings void because no person whatsoever was made defendant and the proper persons did not join in the petition. This court was careful not to announce the rule that all the jurisdictional facts should appear from the record, but said that the jurisdictional facts must be shown to have existed if there was no presumption of jurisdiction from the mere exercise of the right.

Counsel are correct in their statement that the act of 1924 did not go into effect until after the removal of the disabilities of the appellant in this case, but counsel have overlooked the fact that the act of 1922 contained practically the same provision. For the convenience of the court we set out the statutory law in force in 1924. First, sec. 543, Code of 1906, sec. 300 Hem. Code 1917, as amended by chapter 226, Laws of 1922, which is in the following language: "Chap. 226. An act to amend section 543 of the Code of Mississippi of 1906, Hem. Code 300, so as to provide for the removal of the disability of minority from nonresident minors. 'Sec. 1, Be it enacted by the legislature of the state of Mississippi, the chancery court of the county in which a minor resides may remove the disability of his minority; and the chancery court of a county in which a nonresident minor owns real estate may remove the disability of minority of such minor as to such real estate. Sec. 2. That this act take effect and be in force from and after its passage.' Approved March 22, 1922." It is perfectly apparent that appellant's counsel have overlooked the act of 1922, and while sec. 544, Code of 1906, did not require that the petition for removal of disabilities allege specifically the residence of the minor, that section together with the act of 1922 makes it immaterial where the minor resides. As above stated, however, counsel were mistaken in their assumption that the act of 1924 was the...