Fogg v. Arnold
| Decision Date | 07 April 1924 |
| Docket Number | 288 |
| Citation | 260 S.W. 729,163 Ark. 461 |
| Parties | FOGG v. ARNOLD |
| Court | Arkansas Supreme Court |
Appeal from St. Francis Circuit Court; E. D. Robertson, Judge affirmed.
STATEMENT OF FACTS.
Mrs Bertsie Arnold, as guardian of Thelma, Velma, and W. R Kendrick, Jr., minors, brought this suit against H. J Tonkinson, guardian of said minors, and C. C. Fogg and R. Y Hall, as sureties on his bond, to recover the sum of $ 1,515, which the probate court had adjudged to be due said minors in the final settlement of his account as such guardian.
The defendants filed an answer and motion to transfer the case to the chancery court. The answer denied the allegations of the complaint.
Subsequently the defendants filed an amendment to their motion to transfer to equity. Inasmuch as they rely upon its averments for a reversal of the judgment, we copy it in our statement of facts. The body of the amended motion reads as follows: "Come the defendants herein, and for amendment to motion to transfer state: That, while the probate court of St. Francis County had under consideration the adjustment of the account current and reports of H. J. Tonkinson, curator of the estate of his wards, the minors herein above named, there was pending in the St. Francis Chancery Court an action between Ed Bird, Mrs. Arnold, the guardian plaintiff herein, and Mrs. Tonkinson, against the plaintiff, minors herein, involving the title to the lands from which the said H. J. Tonkinson collected the rents (the $ 1,800 mentioned in the original amendment to the answer of the defendants in this cause), and said fact was brought to the attention of the said probate court, and the court indicated that its finding and judgment would be withheld until the title to the lands should be settled in said chancery case, and made such announcement in open court, upon which these defendants relied. Some time thereafter, and after the decision by the chancellor in said chancery case, the probate court, being in session, caused two attorneys for H. J. Tonkinson, administrator, and W. Gorman, Esq., the attorney for the plaintiffs herein, to be called before it, and announced that he was ready to decide the case and make the finding and order asked by the attorney for the plaintiff, and, at the time, made and entered the order relied on by the plaintiffs in this cause.
'
Exhibit "A" is the judgment of the chancery court entered of record on December 12, 1921, in the case of Mrs. Hedley Tonkinson, plaintiff, v. Mrs. Bertsie Crabtree at al., defendants.
The decree recites that it was rendered on the 2d day of March, 1921, but the same was omitted from the record and is entered nunc pro tunc on December 12, 1921. The decree showed that the lands involved in that suit did not belong to Thelma, Velma and W. R. Kendrick, Jr., children and sole heirs- at-law of W. R. Kendrick, deceased, but that the lands belonged to other persons.
The circuit court, over the objections of the defendants, refused to transfer the case to the chancery court.
The plaintiff introduced in evidence the judgment of the probate court rendered on the 11th day of March, 1921. The judgment recites that the court had under consideration the first annual settlement of H. J. Tonkinson as curator of the estate of W. R. Kendrick, Jr., Thelma Kendrick and Velma Kendrick, minors, heirs-at-law of W. R. Kendrick, deceased, and a restatement of said account, filed on November 23, 1920. The judgment further recites that, after allowing the said H. J. Tonkinson, curator, certain corrections and additional credits. the amount in his hands is thereby reduced to the sum of $ 1,515. It was adjudged that the restatement of the account be approved as showing the correct amount due from the said curator to said minors, and that the corrected statement be recorded in the proper records of the probate court. The judgment further recites that Bertsie Crabtree has been appointed as guardian of said minors and had been authorized to receive said amount from said H. J. Tonkinson.
It was further ordered that, upon the filing of proper vouchers of Bertsie Crabtree, as such guardian, of said amount, said Tonkinson and his sureties on his bond as such curator be finally discharged.
To reverse that judgment the defendants have duly prosecuted an appeal to this court.
Judgment affirmed.
S. S. Hargraves and John M. Prewett, for appellants.
1. The judgment of the probate court is void for want of jurisdiction of the subject-matter. 18 Wallace 457; 43 Ark. 62; 91 Ark. 533; 18 Ark. 405. Want of jurisdiction, either of persons or subject-matter, appearing upon the fact of the record, can be taken advantage of at any time and in any court where the conclusiveness of the judgment or decree is the subject of judicial inquiry. 10 Penn. 49; 11 Oregon 88; 64 Mo. 458; 50 Mo. 292. If jurisdiction depends upon some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be collaterally attacked, even though the jurisdictional fact is averred of record and was actually found to exist by the court rendering the judgment. 93 Am. St. Rep. 299; 31 P. 893; 97 Cal. 232.
2. A surety may show that a judgment against his principal was obtained by fraud or collusion, or that the court has no jurisdiction to render the judgment. Am. & Eng. Ency. Law, pp. 99-100; 8 S.W. 292; 100 Ark. 63; 57 Ark. 469. In determining the sufficiency of a judgment against collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter and those quasi-jurisdictional facts without allegation of which the court cannot properly proceed, and without proof of which judgment or decree should not be made. 100 Ark. 69; 23 Cyc. 1074; 147 U.S. 173; 50 Ark. 190.
3. A void judgment may be attacked whenever and wherever it is sought to be enforced. 122 N.W. 980; 122 N.W. 554; 6 Am. St. Rep. 74; 158 Mich. 155; 48 Ark. 151. In a collateral action the force of a judgment can be destroyed only by showing that the court did not have jurisdiction over the subject-matter or the person against whom it was rendered. 23 Am. St. Rep. 113; Freeman on Judgments, §§ 120-120c.
4. Extrinsic evidence is admissible to contradict a record where a judgment is assailed for want of jurisdiction of the subject- matter or the person. 93 Am. St. Rep. 299; 48 Am. Dec. 355; 27 Ark. 675; 30 Ark. 109; Freeman on Judgments, § 518. Where the complaint alleged that the judgment was void for want of jurisdiction both of the subject-matter and the parties, and specified the particular defects which deprived the court of jurisdiction, held that the action was not a collateral attack on the judgment. 112 P. 1064; 42 Mont. 302. The rule that courts of general jurisdiction, having decided in favor of their jurisdiction, are presumed, on collateral attack, to have acted upon sufficient evidence, obtains in all cases save where the question of jurisdiction arises in regard to the person or subject-matter, whether the evidence appears in the record or not. 139 S.W. 653; 100 Ark. 63. An order of the probate court based on the record and pleadings and documents on file in the proceedings, which shows on its face that the court undertook to and did adjudicate the title to the land between parties to the proceedings before the court, is void. 74 Ark. 81; 129 U.S. 86; 58 L. R. A. 641.
5. The cause should have been transferred to equity.
Walter Gorman, for appellee.
The court properly sustained the demurrer. If the judgment of the probate...
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