Eaves v. Mullen
| Citation | 107 P. 433,1910 OK 54,25 Okla. 679 |
| Decision Date | 02 March 1910 |
| Docket Number | Case Number: 933 |
| Parties | EAVES v. MULLEN. |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS--Jurisdiction -- County Court--Guardianship Proceedings--Transfer from Ind. Ter. Court. A guardianship proceeding pending in one of the United States courts of the Indian Territory at the time of admission of the state was, by section 19 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) and section 23 of the Schedule of the Constitution, transferred to the county court of the county in which was located the court in which the case was pending.
2. SAME--Effect of Subsequent Statute. A county court to which had been transferred a guardianship proceeding that would have been properly triable in the court of another county, if it had been instituted since the admission of the state, was not by reason of the act of the Legislature approved March 12, 1908 (Sess. Laws 1907-08, p. 212), ousted of jurisdiction of said cause, where no application for a transfer thereof was ever made by any of the parties having a substantial interest therein.
3. GUARDIAN AND WARD--Application for Sale of Land--Service of Order. Service of an order of the court granting a hearing upon the application of a guardian for an order of sale of his ward's real estate must, by reason of section 1846 Wilson's Rev. & Ann. St. 1903, be had by one of the following methods: First, by personal service of a copy of the order on the next of kin of the ward and all persons interested in the estate at least 14 days before the hearing of the petition; second, by publication of a copy of such order at least 3 weeks in a newspaper printed in the county, or, if there be none printed in the county, then in such newspaper as may be specified by the court or judge in the order.
4. SAME--Sufficiency of Service. The court cannot by order require service by both methods, or service by publication for a longer time than that prescribed by the statute.
5. GUARDIAN AND WARD--Sale of Land--Filing of Petition--Venue. A petition of a guardian for an order of sale of his ward's real estate must be filed in the county court of the county in which he was appointed guardian; but the petition is not required to show affirmatively that the ward resides in the county where it is filed, in order to give the court jurisdiction.
6. GUARDIAN AND WARD--Sale of Lands--Collateral Attack--Decree Confirming Sale--Sufficiency of Notice. A decree confirming a sale at public auction by the guardian of his ward's real estate, made upon a hearing of the return, brought on before the first day of the next term of the county court after such sale, is not rendered void on collateral attack, because notice of such hearing was given only 9 days, instead of 10, as directed by order of the court fixing the date of such hearing, and as provided by sections 1852 and 1667, Wilson's Rev. & Ann. St. Okla. 1903.
Error from District Court, Carter County; S. H. Russell, Judge.
Action by J. S. Mullen against J. J. Eaves. Judgment for plaintiff. Defendant brings error. Affirmed.
This is an action of ejectment brought by defendant in error in the district court of Carter county to recover the possession of a certain tract of land situated in said county. In his petition in that court defendant in error, hereinafter called plaintiffs alleges that he has a legal estate in fee simple and an equitable estate in and to a certain tract of land which he describes, and that he is entitled to the immediate possession thereof. He alleges that plaintiff in error, hereinafter called defendant, has unlawfully kept him out of possession of same since January, 1909, and prays for judgment for possession thereof and for damages in the sum of $ 100. Defendant, by his answer, attempts to allege specifically the facts pertaining to the manner in which plaintiff acquired his alleged title to the land, which alleged facts are briefly as follows: Emily Holding, a full-blood Chickasaw Indian, died in the year 1904, after having had allotted to her the lands in controversy. She left surviving her as her heirs at law her mother, Suchy Holding, her father, Amos Holding, and five brothers and sisters, namely, James, Annie, and Armon Holding, minors, and Andrew L. Brown and Lydia Colbert, adults. One F. A. Bonner was appointed guardian for the three minors in the United States Court for the Southern District of the Indian Territory, at Ardmore, prior to the admission of the state. After the admission of the state, he filed his petition in the county court of Carter county, asking for an order of sale permitting and directing him to sell the interest of his wards in the land in controversy for the purpose of maintenance and education. The order of sale was made, the interest of the minors sold, and conveyed under order of that court. Plaintiff is the grantee of the purchaser at said sale and has also purchased the interest of the adult heirs.
The specific allegations of the answer, made by the defendant for the purpose of showing that the sale by the guardian was void, and that there is an outstanding title in said minor heirs, in substance, are: First. That the minor heirs, represented by F. A. Bonner, guardian, were at the time the petition for sale and the order thereon was made domiciled in Johnston county, Okla., and for this reason the county court of Carter county had no jurisdiction to entertain the petition for the sale of their lands. Second. That the court in making the order for hearing on the petition of guardian for sale ordered that the next of kin and persons interested be notified by personal service of the time and the place of said hearing, and also ordered that a copy of the order be published for four consecutive weeks in the Ardmoreite of Ardmore, Okla. No personal service was made upon the next of kin and persons interested. The notice of hearing was published upon the 2d, 9th, 16th, and 23d days of September, 1908, making in all only 22 days, whereas, the order of court was that it should be published for four weeks. Third. That the court in ordering the sale directed that notice thereof be published in a paper published in Carter county for two consecutive weeks, and in a paper in an adjoining county for the same length of time, but that such notice was published in the Carter county paper on the 4th and 11th days of October, 1908, and in a paper in an adjoining county on the 1st and 8th days of October, 1908. Fourth. That in the order for hearing, on the return of sale the court set the 30th day of October, 1908, as the date for said hearing, and ordered that notice thereof be published in the Ardmoreite of Ardmore, Okla., for 10 days. That said notice was published only on the 21st and 30th days of October, 1908.
A demurrer to the defendant's answer was sustained, whereupon, he having refused to plead further, the court rendered a judgment in favor of the plaintiff on the pleadings.
H. A. Ledbetter, for plaintiff in error.--Citing: Woerner, Am. Law of Guardianship, pp. 80-82, 245; Connell v. Moore, 78 P. 164; Allgood v. Williams, 92 Ala. 551; Kelsey v. Green, 69 Conn. 291; Beezley v. Phillips, 117 F. 105; Mulford v. Stoback, 46 Ill. 303; Coy v. Downie, 14 Fla. 544; Morden v. Purdy, 11 Minn. 384; Mickel v. Hicks, 19 Kan. 578; Groden v. Mois, 95 P. 412; 21 Cyc. 136, 138, 139; State v. Towl, 48 Mo. 148; Frazier v. Jenkins, 64 Kan. 615; Railway Co. v. Cook, 43 Kan. 84; Campbell v. Drais, 57 P. 994; Hellman v. Merz, 44 P. 1079.
J. V. Cabell, J. A. Bass and Cottingham & Bledsoe, for defendant in error.--Citing: Davis v. Caruthers, 22 Okla. 323; Kelly v. Morrel, 29 F. 736; Calloway v. Nicholas, 47 Tex. 331; Whiteman v. Fisger, 74 Ill. 152; Benson v. Benson, 70 Ind. 258; Newbald v. Schlens, 66 Md. 589; Hamiel v. Donnelly, 75 Iowa 93; Schale v. Wasey, 70 Mich. 414; Walker v. Goldsmith, 14 Ore. 145; Brazee v. Schofield, 2 Wash. 220; Fleming v. Johnson, 26 Ark. 421; Gwyn v. McCauley, 32 Ark. 107; Currie v. Franklin, 51 Ark. 338; Woerner on Guardianship, sec. 87; Montour v. Purdy, 11 Minn. 278; Hurt v. Long, 16 S.W. 968; White v. Iselin, 5 N.W. 359; Thaw v. Ritchie, 136 U.S. 548; Fitzgibbon v. Lake, 29 Ill. 176; Mulford v. Beneridge, 78 Ill. 458; Mohr v. Porter, 51 Wis. 357; Orman v. Boles, 33 P. 110; Kretsinger v. Brown, 165 F. 612; Hagerman v. Meeks, 45 P. 69; Conling v. La Dow, 54 P. 218; In re Hamilton Estate, 52 P. 710; Mortgage Trust Co. v. Redd, 88 P. 476; Estate of Dorsey, 17 P. 209; Scarf v. Aldrich, 32 P. 324; Gage v. Henry, 5 Sawyer 253; Fitch v. Miller, 20 Cal. 381; Mohr v. Maniere, 101 U.S. 417; Watson v. Tromble (Neb.) 29 Am. St. Rep. 492; Zillmer v. Geritchen (Cal.) 43 P. 409.
¶1 (). The first contention of counsel for plaintiff in error is that the county court of Carter county was without jurisdiction to entertain the petition of the guardian, F. A. Bonner, for an order of sale of his wards' interest in the land in controversy. He concedes that the United States Court for the Southern District of the Indian Territory had jurisdiction to appoint F. A. Bonner guardian of the minors. His wards then resided, and now reside, in what was formerly the Southern District of the Indian Territory. It is not contended that any change of residence has been made by any act of the wards, their guardian, or their parents, but that by the Constitution the territory formerly constituting the Southern District of the Indian Territory was divided into 10 or more counties, and that the place of residence of the minors is not within Carter county, but is within Johnston county. The statute extended in force in the state by the enabling act and the Schedule to the Constitution provides that the county court, when it appears necessary or convenient, may appoint guardians for the persons and the estates, or both of them, of minors who have no guardian legally appointed by deed or will, and who are inhabitants or residents of the...
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