Fowler v. Nash

• Decision Date: 01 December 1932
• Docket Number: 6 Div. 155.
• Citation: 144 So. 831,225 Ala. 613
• Parties: FOWLER v. NASH ET AL.
• Court: Alabama Supreme Court

144 So. 831

225 Ala. 613

FOWLER v. NASH ET AL.

6 Div. 155.

Supreme Court of Alabama

December 1, 1932

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

Bill to set aside lunacy proceedings and for accounting by James A Fowler against L. E. Nash and others. From a decree denying relief, complainant appeals.

Reversed rendered, and remanded.

J. A Lusk, of Guntersville, for appellant.

P. A Nash, of Oneonta, for appellees.

KNIGHT J.

This case has been before this court on three former occasions, in one form or other. In the case of Fowler v. Fowler et al., reported in 219 Ala. 453, 122 So. 440, this court construed the averments of the bill and then held the same sufficient to call into exercise the jurisdiction of the court of equity to review and revise the proceedings had in the probate court of Blount county, adjudging the present complainant a person of unsound mind, and appointing a guardian of his estate. A careful review of that decision, which is full and exhaustive, leaves us in full accord and agreement with the conclusions there reached. The equity of the case there presented and determined, is so fully supported, both on principle and authority, that we feel a further citation of precedents would be the work of supererogation. We therefore shall address ourselves to the determination of the one question: Does the evidence support, to that degree of satisfaction required in such cases, the averments of the bill? While the bill, on reversal of the cause, was amended in the court below, the amendment made no material change as to the facts relied upon for relief.

On former appeal the salient averments of the bill are fully and clearly stated by Mr. Justice Brown, and without again reciting them, we refer to the opinion for a statement of the facts.

Since this cause was decided on former appeal, the sheriff of Blount county, at the time the lunacy proceedings were instituted against complainant, has been allowed to amend his return upon the writ, and, as amended, the return reads: "I have executed the within writ by taking into my custody James A. Fowler, and hereby certify that it is inconsistent with the health and safety of the said James A. Fowler to have him present at the Probate Office at ten o'clock A. M. on Saturday, the 11th day of April, 1925, at the hearing of said cause. This April 11th, 1925. [Signed] George McPherson, Sheriff of Blount County, Alabama."

This amendment was made pursuant to permission given the ex-official by order of the probate court of Blount county. On appeal, this court affirmed the judgment of the circuit court in denying the motion of James A. Fowler to strike the petition for certiorari and to quash the proceedings in the probate court, this court holding that the return was amendable.

It is now insisted by appellees that this amended return "is conclusive in the action, and that the return of the sheriff on the writ is 'both the highest and best evidence of the fact of execution, and that it cannot be called in question collaterally, or be impeached or varied by parol proof of the sheriff, or any other person; nor can a sheriff be allowed to depose to a state of facts inconsistent with his ruturn."' We are cited by appellees to the cases of Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Martin v. Barney, 20 Ala. 369, and Price v. Cloud, 6 Ala. 248, as authorities in support of their contention. We are in full accord with the holding of those cases, but in the instant case, where fraud is averred and proof made in support of it, a very different rule applies.

In the case of Stewart v. Capital Fertilizer Co., 207 Ala. 596, 93 So. 641, 642, this court made this observation with reference to the return of a sheriff: "The sheriff's return imports verity and cannot be contradicted or impeached in the action in which it was made. Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304. 'The court must, of necessity, give credence to the acts of its own officers; otherwise, it would be impeded, at every step, by the trial of collateral issues.' Dunklin v. Wilson, 64 Ala. 162; Brown v. Turner, 11 Ala. 752. This rule does not, of course, preclude the sheriff from amending his return in proper cases so as to make it speak the truth. Nor is said return conclusive on a party to the cause upon an action against the sheriff for a false return, or upon a proceeding in equity, or under the four months' statute to set aside a judgment or decree rendered thereupon." This is not a collateral proceeding, in any sort of way, but is a direct attack upon the entire proceedings, begun, had, and carried to completion in the probate court. Fraud is the basis of the suit.

"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." Fowler v. Fowler, 219 Ala. 453, 122 So. 440, 441; 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. James, 204 Ala. 133, 85 So. 799; Van Fleet on Collateral Attack, § 2; Harman v. Moore, 112 Ind. 221, 13 N.E. 718; Herring v. Ricketts, 101 Ala. 340, 13 So. 502.

While courts of probate have "authority, and it is a duty, to appoint guardians for persons of unsound mind residing in the county, having an estate, real or personal, and of persons of unsound mind residing without the state, having within the county property requiring the care of a guardian," yet that authority must be, and can only be, exercised within the limitations and in the mode prescribed by statute. Code, § 8103. The limitation fixed by statute upon the authority of courts of probate in the appointment of a guardian of a person of unsound mind is that such an appointment must not be made until an inquisition has been had and taken as directed by statute. Code, § 8104.

One of the jurisdictional averments of a petition to have a person adjudged to be of unsound mind is the averment that the alleged lunatic resides in the county where the proceedings are filed. The petition, in the instant case, avers that James A. Fowler, the alleged insane person, was "a resident citizen of Blount County." On its face, the petition for writ of lunacy was regular and contained all jurisdictional averments.

It is the contention of the complainant that the entire proceedings to have him adjudged of unsound mind were the result of a fraudulent combination and scheme on the part of certain named persons, some of whom were his children, in order to deprive him of his property, and that they might reap benefits therefrom. If the proceedings were in fact fraudulent in conception and execution, and the result of a conspiracy to deprive the complainant...