Ex parte Chapman

• Decision Date: 09 June 1932
• Docket Number: 7 Div. 130.
• Citation: 142 So. 540,225 Ala. 168
• Parties: EX PARTE CHAPMAN.
• Court: Alabama Supreme Court

142 So. 540

225 Ala. 168

EX PARTE CHAPMAN.

7 Div. 130.

Supreme Court of Alabama

June 9, 1932

Original petition of Alice Morgan Chapman for mandamus to Hon. R. B Carr, as Judge of the Circuit Court of Calhoun County.

Mandamus awarded.

William J. Slaughter, of Birmingham, for appellant.

Merrill Jones, Whiteside & Allen, of Anniston, for appellee.

KNIGHT J.

Petition for writ of mandamus to be issued from this court, directed to Hon. R. B. Carr, as judge of the circuit court of Calhoun county, requiring him to vacate and annul an order made by him as such judge, directing the removal "of the estate of Alice E. Chapman, minor, from the Probate Court of Calhoun County to the Circuit Court of Calhoun County, Alabama, in Equity."

It is made to appear from the petition filed in this cause that on the 26th day of April, 1912, the petitioner's mother Lizzie Morgan, was duly appointed guardian of the estate of petitioner, and duly qualified as such guardian, upon the execution of proper bond with E. S. Formby, O. L. Stewart, and S.D. Savage as her sureties. The bond was payable in the penal sum of $2,000. Since the execution of the bond, the said S.D. Savage has died.

On the 15th day of September, 1931, no final settlement of the guardianship having been made, the said ward filed her petition in the probate court of Calhoun county to require the guardian to file her account as guardian. Thereafter, on January 9, 1932, the guardian filed her report in said court showing she had as petitioner's guardian, received the sum of $5,400, and had in no wise accounted for said money received "or expended for or on behalf of petitioner." It is further averred that this report of the guardian was filed in response to the petition of the ward demanding an accounting of said guardian in the probate court.

It is further made to appear, from the petition before us, that, upon the filing of the report of the guardian, the probate court of Calhoun county assumed jurisdiction of the settlement of the account of the guardian and set the cause down for hearing upon final settlement on March 7, 1932, and that the ward, petitioner here, "presented herself before the Probate Judge of Calhoun County, and demanded a judgment be entered against the guardian and her two surviving sureties." It further appears that, on March 5, 1932, the sureties Stewart and Formby presented to Judge R. B. Carr, judge of the circuit court of Calhoun county, a petition, setting up that they were sureties on the said guardianship bond of Lizzie Morgan, as guardian of said Alice Chapman, and averring that the guardian was insolvent, and that "according to their information and belief there was a fraudulent and collusive agreement between the said guardian and her said ward for the purpose of having a false and fraudulent judgment entered in the probate court against the guardian and sureties on the guardianship bond." Said petition of the sureties prayed that said cause be removed from the probate court of Calhoun county to the circuit court of same county, in equity, for final disposition of the cause.

Upon the presentation of the petition by the sureties to the Hon. R. B. Carr, as judge of the circuit court of Calhoun county, he, as such judge, ordered the removal of the estate of Alice Chapman, minor, from the probate court to the circuit court, in equity. The petitioner here, the said Alice Chapman, filed motion with Hon. R. B. Carr, as such circuit judge, to vacate and annul his order, directing the removal of said proceedings from the probate court to the circuit court in equity. And on April 6, 1932, the said circuit judge overruled and disallowed the motion, and retained jurisdiction of said cause.

Upon the presentation of her petition to this court for mandamus, this court ordered a rule nisi to issue. To the rule, Hon. R. B. Carr has filed his answer, and, along with it, demurrers to the petition. The essential averments of the petition are admitted in the answer of Judge Carr, but he takes the position that the order made by him, transferring the cause to the circuit court, in equity, was a valid and lawful order, and that the circuit court of Calhoun county, in equity, thereby became vested with full authority and jurisdiction over the said cause, and that his future orders in said cause, subject to revision by the Supreme Court of Alabama, will be binding upon all the parties in said cause. And by his answer he challenges the propriety of the proceedings by mandamus as the proper remedy for petitioner in the premises.

The court of probate, from which the appointment of a guardian of a person of unsound mind, or of a minor, is derived, is given by statute, jurisdiction of the settlement, partial or final, of the accounts of the guardian. Code, § 8201.

Section 8212 of the Code, inter alia, provides: "And all final decrees rendered against a guardian, or against the personal representative of the guardian, on a final settlement, have the force and effect of a judgment at law, on which execution may issue against the guardian, or his personal representative, and against the sureties of the guardian" etc.

It thus appears that the court of probate, in this state, are clothed by statute with full jurisdiction over the settlement partial or final, of the accounts of guardians of their appointments. The jurisdiction of such courts, in matters of the appointment of guardians, and of the settlement of the accounts of guardians, is concurrent with the jurisdiction of courts of equity. As is said in Hailey v. Boyd's Adm'r, 64 Ala. 399: "The jurisdiction of the Court of Probate, and of the Court of Chancery, is concurrent in matters of guardianship; and the ward has an unqualified right of electing the forum in which he will make a settlement, the jurisdiction of the one not having...