In re Moore's Guardianship

• Decision Date: 12 October 1915
• Docket Number: 5303.
• Citation: 152 P. 378,51 Okla. 731,1915 OK 794
• Parties: IN RE MOORE'S GUARDIANSHIP ET AL. ROBERTS v. WHITEMAN.
• Court: Oklahoma Supreme Court

152 P. 378

51 Okla. 731, 1915 OK 794

IN RE MOORE'S GUARDIANSHIP ET AL. ROBERTS v. WHITEMAN.

No. 5303.

Supreme Court of Oklahoma

October 12, 1915

Syllabus by the Court.

The jurisdiction of any court exercising authority over any subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceeding.

An appointment of a curator by order of the United States Court for the Central district of the Indian Territory, pursuant to section 3477, c. 73, of Mansfield's Digest of the Laws of Arkansas 1884, when made without the voluntary appearance of or due notice issued by said court to, the mother of such minors, the father being dead, is void.

Commissioners' Opinion, Division No. 3. Error from District Court, McCurtain County; Summers Hardy, Judge.

Petition by Palo A. Roberts, to dismiss W. J. Whiteman, Guardian of Ben Moore and others, minors. From judgment for defendant W J. Whiteman on appeal to the district court, petitioner brings error. Affirmed.

Gordon Fryer, of Atoka, for plaintiff in error.

Spaulding & Carr, of Idabel, for defendant in error.

RITTENHOUSE C.

On October 9, 1907, Palo A. Roberts filed, in the United States Court for the Central District of the Indian Territory at Atoka, his petition for appointment as curator of the estates of Ben and Sarlin Moore, and Louie and Loston Coxwell minors. On October 14, 1907, letters were issued. On March 7 1910, W. J. Whiteman was appointed guardian by the county court of McCurtain county, Okl. On April 10, 1912, Palo A. Roberts filed in the said county court his petition, alleging that he was the legal curator of said minors; that the appointment of Whiteman was null and void, and asking the court to declare the letters of guardianship to Whiteman null and void. To this petition, answer was filed, denying the validity of the appointment of Palo A. Roberts. Judgment was rendered in favor of W. J. Whiteman in the county court, sustaining his appointment as the guardian in McCurtain county. An appeal was perfected to the district court, and, upon trial, resulted in a judgment in favor of the appointment of W. J. Whiteman, the court finding:

"Palo A. Roberts was by the United States Court for the Central District of the Indian Territory, sitting in probate at Atoka, Ind. T., on the 14th day of October, 1907 appointed curator of said minors. That the petition of the said Palo A. Roberts for such appointment was filed and presented on the day of said appointment. That such petition failed to show that the parents of said minors was unfitted for the duties of guardianship, and was not made or signed by either of said minors, or by their next of kin, and that such petition was not by the court set down on any particular day, and that no notice of such application for or appointment of said Palo A. Roberts as curator was served upon or waived by the mother and next of kin or persons having the custody of said minors.

The court further finds that the mother of said minors was living, and resided in what is now McCurtain county, Okl., at the time of such appointment, and so continued to reside there until her death in 1911, and that such appointment of Palo A. Roberts, so made by the United States Court sitting in probate at Atoka, Ind. T., on October 14, 1907, under which petitioner claims, is and was wholly void, and that the petition of said Palo A. Roberts for the removal of W. J. Whiteman as guardian of said minors or the transfer of such probate proceedings to Atoka county, Okl., should be denied.

It is therefore ordered, adjudged, by the court that the petition of Palo A. Roberts for the removal of W. J. Whiteman as guardian of Benjamin Moore, Sarlin Moore, Louie Coxwell, and Loston Coxwell, minors, under appointment of the county court of McCurtain county, Okl., and for the transfer of such case to Atoka county, Okl., be denied, and that the judgment of the county court of McCurtain county, Okl., be, and the same is in all things sustained, and that W. J. Whiteman have and recover of and from the petitioner, Palo A. Roberts, his cost herein

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