Lacy v. Williams

• Decision Date: 31 July 1858
• Citation: 27 Mo. 280
• Parties: LACY, Plaintiff in Error, v. WILLIAMS, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 280

LACY, Plaintiff in Error,

v.WILLIAMS, Defendant in Error.

Supreme Court of Missouri.

July Term, 1858.

1. The general appellate jurisdiction that the Circuit Courts exercise over the County Courts does not authorize them to try de novo causes appealed from the County Courts.

2. Generally, the domicile of the parent is the domicile of the minor child.

3. Curators of the estates of minors cannot be appointed by the County Courts of counties in which such children do not reside.

Error to Polk Circuit Court.

George M. Williams was appointed by the County Court of Polk county curator of the estates of three minors, who were, and still are, under the age of fourteen years. At the time of this appointment said minors resided in Cedar county. They owned land in Polk county. On the motion of their mother, Mrs. Lacy, the County Court revoked the appointment of Williams. He appealed to the Circuit Court. The Circuit Court, having heard the evidence, vacated the order of the County Court displacing Williams, and directed that he be re-instated as curator. It is to obtain a review of this action of the Circuit Court that Mrs. Lacy brings the cause by writ of error to this court.

F. P. Wright, for plaintiff in error.

I. In a case like the present, there is no appeal to the Circuit Court. The remedy was by writ of error or mandamus. The minors being residents of Cedar county, the County Court of that county had the sole right of appointing curators of their estates. (R. C. 1855, p. 823, §§8, 9.) The mother had the right to be appointed curator.

Freeman, for defendant in error.

I. The County Court could not revoke its appointment of Williams as curator without giving him notice. Its attempt to do so was illegal. Mrs. Lacy was a married woman, and could not act as curator. (R. C. 1855, p. 822.) Even if the County Court committed error in appointing Williams curator, since the plaintiff in error was and still is a married woman, she had no power to appear either in the County or the Circuit Court by attorney without joinder of her husband. An appeal lies from the order of the County Court in this case to the Circuit Court. (R. C. 1855, p. 533, §8.)

SCOTT, Judge, delivered the opinion of the court.

The second section of the 14th article of the practice act (R. C. 1855, p. 1295) directs that a writ of error shall issue on the final decision or judgment of the County Court from the Circuit Court. The 4th clause of the 8th section of the act to establish courts of record and prescribe their powers and duties (R. C. 1855, p. 533) gives the Circuit Court appellate jurisdiction from the judgments and orders of County Courts and justices of the peace, in all cases not expressly prohibited by law, and also confers a superintending control over them.

Except in a few instances expressly mentioned, the law seems to be silent as to the mode in which the benefit of appeals and writs of error shall be obtained on a judgment or decision rendered in the County Court. No method is pointed out as to the manner in which the evidence shall be preserved in the inferior courts for the use of the superior court. A trial de novo in the Circuit Court would not strictly be the exercise of appellate jurisdiction. (The County of St. Louis v. Sparks, 11 Mo. 203.) It is clearly competent for the general assembly to...