Fowler v. Fowler, 6 Div. 245.

• Court: Supreme Court of Alabama
• Writing for the Court: BROWN, J.
• Citation: 219 Ala. 453,122 So. 440
• Parties: FOWLER v. FOWLER ET AL.
• Docket Number: 6 Div. 245.
• Decision Date: 24 January 1929

122 So. 440

219 Ala. 453

FOWLER
v.
FOWLER ET AL.

6 Div. 245.

Supreme Court of Alabama

January 24, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Bill in equity by James A. Fowler against William G. Fowler and others to set aside lunacy proceedings and for accounting by the guardian. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded. [122 So. 441]

J. A. Lusk, of Guntersville, for appellant.

Nash & Fendley, of Oneonta, for appellees.

BROWN, J.

This is a bill filed by the appellant against appellees, seeking to set aside and annul a proceeding in the probate court of Blount county declaring the appellant to be a person of unsound mind and appointing the appellee Nash as guardian of his estate, and to compel the guardian to account as a trustee in invitum. Moody v. Bibb et al., 50 Ala. 245.

The bill attacks the proceedings in the probate court on two theories: First, fraud in procuring the decree adjudging the complainant to be of unsound mind; and, second, that the proceedings are ex facie void for want of jurisdiction in the probate court to proceed.

The demurrers filed by the respondents assert that the bill is without equity; that the probate court in such matters is a court of record of general jurisdiction, and its proceedings are not subject to collateral attack; that the allegations going to show fraud are the mere conclusions of the pleader, without the averment of facts to sustain such conclusions; that there is a misjoinder of parties defendant in that the guardian and his surety, who are not charged with fraud, are improperly joined, and for misjoinder of causes of action were sustained, and the appeal is from that decree.

The granting of relief against judgments and decrees fraudulently obtained is a matter within the original jurisdiction of courts of equity, and a bill for that purpose is, in its very essence, a direct not a collateral attack, and the fact that the proceedings eventuating in the judgment or decree are regular on their face, affirming jurisdiction in the court to proceed, is not an insuperable obstacle to relief. Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Id. (second appeal) 176 Ala. 287, 58 So. 262; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Mitchell v. Rice, pro ami, 132 Ala. 126, 31 So. 498; Ex parte Smith, 34 Ala. 455; Edmondson v. Jones, 204 Ala. 133, 85 So. 799; Van Fleet on Collateral Attack, § 2; Harman v. Moore, 112 Ind. 221, 13 N.E. 718; Herring et al. v. Ricketts, 101 Ala. 340, 13 So. 502.

In Edmondson v. Jones, supra, the lunacy proceedings were not made exhibits to the bill, and what was there said with reference to collateral attack was limited to the proceedings and decrees of the probate court, for the sale of the property for payment of debts, attached and made exhibits to the bill; and it was there held that the bill seeking to impeach the decree of sale was a direct attack.

It must be conceded that the statute, Code of 1923, § 9579, makes the court of probate, in the appointment of guardians for persons of unsound mind, a court of general jurisdiction, and where the court's jurisdiction [122 So. 442] has attached, the contrary not appearing of record, the presumption will be indulged that the proceedings are regular. Blount County Bank v. Barnes (Ala. Sup.) 118 So. 460. Yet, by the very terms of the statute, this general jurisdiction cannot attach until an inquisition of lunacy has been held as directed. These statutes declare:

"The court of probate has authority, and it is a duty, to appoint guardians for persons of unsound mind residing in the county, *** having within the county property requiring the care of a guardian, under the limitations, and in the mode hereinafter prescribed." Code of 1923, § 8103

"A guardian for a person alleged to be of unsound mind, residing in the county, must not be appointed until an inquisition has been had and taken as hereinafter directed." (Italics supplied.) Code of 1923, § 8104.

Section 8105 provides who may file the petition, and its essential averments, and provides: "If, on the hearing of such inquisition, the person alleged to be of unsound mind is not represented by counsel, the court shall appoint a guardian ad litem to represent and defend for him."

Section 8106 provides the steps necessary to the summoning of a jury and to acquire jurisdiction of the person of the alleged lunacy.

The only notice to the alleged lunatic provided for by the statute, and the only way in which the court can acquire jurisdiction of his person, is to issue "a writ directed to the sheriff to take the person alleged to be of unsound mind, and, if consistent with his health or safety, have him present at the place of trial," and "by the statute it is made the duty of the sheriff to take the body, without condition." Craft v. Simon, 118 Ala. 625, 24 So. 380; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165; Fore v. Fore, 44 Ala. 478.

Construing the foregoing statute in pari materia with section 9579, it is...