In re Heard's Guardianship

• Decision Date: 28 October 1935
• Docket Number: 31868
• Citation: 174 Miss. 37,163 So. 685
• Parties: IN RE HEARD'S GUARDIANSHIP
• Court: Mississippi Supreme Court

163 So. 685

174 Miss. 37

IN RE HEARD'S GUARDIANSHIP

No. 31868

Supreme Court of Mississippi

October 28, 1935

Division B

Suggestion Of Error Overruled November 25, 1935.

APPEAL from the chancery court of Forrest county HON. BEN STEVENS Chancellor.

Petition by Ruth Heard and Laura Heard, guardian, to set aside decree and settlement in the matter of the guardianship of Ruth Heard, minor. From the judgment, the petitioners appeal. Affirmed.

Affirmed.

E. F. Coleman, of Purvis, for appellants.

Section 1868, Code of Mississippi, 1930, provides that the chancery court of the county of the residency of the minor ward is the county in which the petition must be filed. Therefore any other court is without jurisdiction.

Earl v. Crumm, 42 Miss. 165; Herrin v. Goodman, 43 Miss. 392; Henry Duke v. State, 57 Miss. 229.

If the petition for the appointment of a guardian for a minor be filed in a court of any county other than the county in which the minor resides, if the minor ward resides within the state of Mississippi, and a decree is rendered thereon appointing a guardian, the decree is void and therefore a nullity.

Section 1868, Code of 1930; Herrin v. Goodman, 43 Miss. 392; Earl v. Crumm, 42 Miss. 165; Duke v. State, 57 Miss. 229; Amis v. Williams, 72 Miss. 768, 17 So. 762.

There is one other proposition we may bring to the court's attention as to the residency of the minor ward, and that is the proposition that the residency or domicile of the parents or persons in loco parentis is the domicile of the minor, and the removal of the ward does not affect the matter as to jurisdiction.

21 Cyc. 24, sec. 2; Wells v. Anderson, 60 Miss. 373.

In this case it is the undisputed evidence that the ward, Ruth Heard, a minor, was a resident of Hinds county, Mississippi, when the petition was filed and when the decree was rendered. The pleadings on the face in the case show that the guardian, Laura Heard, was a resident of Hinds county, Mississippi, for the petition for letters of guardianship states that she is a resident of Hinds county, Mississippi. This being true, then under the principal announced above the residency of the minor ward was in Hinds county, Mississippi.

If the decree is void it is a nullity and can be attacked in two ways, one by filing a separate suit for that purpose and one way by filing a motion or petition in the guardianship matter itself.

Davis v. Davis, 99 So. 673.

OPINION

Ethridge, P. J.

On October 27, 1931, Laura Heard filed a petition in the chancery court of Forrest county, Mississippi, praying for appointment as guardian of Ruth Heard, a minor seventeen years of age, reciting as follows: "Comes now Laura Heard, a resident citizen of Hinds County, Mississippi, and would state and show the facts following: That she is the mother of Ruth Heard, a minor now of the age of seventeen years, and that by reason of the death of John Heard, the father of said minor, said minor has inherited a small sum of money, less than the sum of One Hundred dollars; and that it is necessary to have a guardian appointed for the estate of said minor. Petitioner would further show that she is a suitable person to be appointed such guardian, wherefore, petitioner prays that she be appointed guardian of the estate of her minor daughter and for such other and further relief as she may, in equity, be entitled."

The chancery clerk of Forrest county issued letters of guardianship, on October 27, 1931, to said Laura Heard upon bond in the sum of one hundred dollars having been approved.

A petition was filed by said Laura Heard reciting that on the 13th day of October, 1931, John Heard, her husband, and the father of said minor, was killed by the operation of a train in the city of Hattiesburg by the Gulf & Ship Island Railroad, and that said John Heard died intestate leaving his widow, three sons all over twenty-one years of age, and Ruth Heard, a minor daughter. Said petition set forth that there was a contention between the heirs of John Heard and the railroad company as to how the injury was inflicted that resulted in the death of said John Heard, and that it was thought to be best to accept a compromise and settle said claim, and prayed that the court authorize her to settle the claim. This petition was presented to the chancery court of Forrest county on the 27th day of October, 1931. The chancellor entered an order, on October 28, 1931, authorizing a settlement of the suit against the railroad company, and on the 4th day of April, 1935, a decree was entered reciting that the minor's interest amounted to only one hundred twenty dollars, and that said sum had been expended in the support and maintenance of said minor, and that said guardian and her bondsmen be discharged.

On the 20th day of April, 1935, a petition was filed by Laura Heard and Ruth Heard, reciting that certain petitions were filed in the chancery court of Forrest county purporting to have been filed by Laura Heard asking that she be appointed as guardian of Ruth Heard, then a minor, and that said Laura Heard, as guardian, be permitted to settle a doubtful claim for her ward, the said Ruth Heard, against the Gulf & Ship Island Railroad Company for the sum of twenty-four dollars. The petition further set forth that these petitions above referred to were all filed without the knowledge or consent of said Laura Heard, and that she did not learn of same until recently. The petition stated that Ruth Heard, at the time of the filing of said petitions above referred to, and the signing of the decrees thereon, was a resident of Hinds county, and was for a long...