Miller v. Shelton

• Decision Date: 10 November 1925
• Docket Number: Case Number: 15869
• Citation: 241 P. 132,115 Okla. 35,1925 OK 913
• Parties: MILLER v. SHELTON et al.
• Court: Oklahoma Supreme Court

1925 OK 913

241 P. 132

115 Okla. 35

MILLER v. SHELTON et al.

Case Number: 15869

Supreme Court of Oklahoma

Decided: November 10, 1925

Syllabus

¶0 1. Guardian and Ward -- Settlement of Guardian's Account--Necessity for Notice.

Where an order settling the account of a guardian shows on its face that no notice was given of the hearing, said order is void, as the statute requires notice to be given of the final settlement of guardian's and administrator's accounts.

2. Same--Loss of Jurisdiction by Due Transfer of Case to Another County.

Where a guardianship proceeding is pending in one county, and upon application of the guardian, upon proper showing, the case is transferred to another county, the court of original jurisdiction loses all control of said guardianship proceeding, and the jurisdiction of the guardianship proceeding is vested in the county court to which the case is transferred, and an order made in said guardianship proceedings, after said transfer, by the court of original jurisdiction, is absolutely void for want of jurisdiction.

Commissioners' Opinion, Division No. 1.

Error from District Court, Carter County; W. F. Freeman, Judge.

Action by Wade Shelton and Dolores Shelton, against J. M. Miller. Judgment for plaintiffs, and defendant brings error. Reversed.

R. A. Howard and Brett & Brett, for plaintiff in error.

H. A. Stanley, for defendants in error.

MAXEY, C.

¶1 The petition in this case alleges that one Phillip Stephenson was appointed guardian of Ivy Stephenson on the 20th day of April, 1914, and gave a guardian's bond in the sum of $ 500 with J. M. Miller, the plaintiff in error, as said bondsman; that Ivy Stephenson was thereafter married to the defendant in error Wade Shelton, and that there was born to them the other defendant in error, Dolores Shelton, said husband ad daughter being Ivy's sole heirs at law; that on the 28th day of March, 1922, the county court of Carter county made an order settling the account of Phillip Stephenson, guardian of Ivy Stephenson, and found that Phillip Stephenson was indebted to Ivy Stephenson in the sum of $ 1,804.29, which had not been paid, and prayed for judgment against plaintiff in error, J. M. Miller, for $ 500, the penalty of his bond.

¶2 The defendant, Miller, answered by general denial, and especially pleaded that plaintiffs had already instituted a suit styled "Wade Shelton v. G. W. Lobestein," seeking to recover the land that had previously belonged to Ivy Stephenson, and having elected to recover the property from which the money was derived, that caused the shortage in the account of the guardian, they were estopped from claiming the proceeds of the sale of said land. The defendants in error, among other things, offered in evidence the order of the county court of Carter county, Okla., of March 28, 1922, which is as follows:

"Now, on this the 28th day of March, 1922, came on to be heard the final report of Phillip Stephenson, guardian, and his petition to be discharged. The court, after hearing said application and being fully advised in the premises, finds that said Phillip Stephenson, as such guardian, is due his said ward and her estate the sum of $ 1,804.29, and he is hereby ordered to immediately pay said sum into court. Upon the payment of said amount aforesaid into this court, the said Phillip Stephenson shall be discharged as such guardian, and he and his bondsmen relieved and discharged from any and all liability in this case because of said guardianship, and the execution of any bonds or all bonds, whether same be general guardianship bonds or special sale bonds, executed during said guardianship."

¶3 This order was objected to on the ground, among others, that the county court had no jurisdiction to make said order, which objection was overruled and exceptions saved.

¶4 The plaintiff in error then introduced the order of the county court of Carter county, made on the 16th day of September, 1914, transferring the guardianship of Wayne, Ivy and Anna Stephenson from Carter county to Seminole county. Said order transferring the case to Seminole county is in words and figures as follows:

"Now, on this the 16th day of September, 1914, this cause coming on to be heard upon the petition of the guardian showing that the wards herein were now residents of Seminole county, Okla., and asking that this case be transferred to said Seminole county, and it appearing to the court that due and legal notice of this hearing had been given, said hearing having been originally set for hearing September, , 1914, and duly postponed and continued until this date, and after hearing said petition and the proof offered in support thereof, it is ordered that this cause be and the same is hereby transferred to the county court of Seminole county, Okla., and that all the original papers, together with this order, be transmitted to said court, and there be used as the original papers in said cause."

¶5 The plaintiff in error demurred to the evidence of plaintiffs, which was overruled, and objections saved, and judgment was entered against the plaintiff in error, J. M. Miller, for the sum of $ 500, the penalty in the bond, with interest. Motion for a new trial was filed and overruled, exceptions saved, and notice of appeal given, and time taken to prepare and serve case-made, which was done, and the case is now before this court for review.

¶6 There was no attempt made to prove the liability of plaintiff in error, J. M. Miller, except the order of the county court made on the 28th day of March, 1922. It is contended by plaintiff in error that the order of March 28, 1922, is void upon its face and shows that the county court had no jurisdiction of the guardianship proceedings, because the same had been transferred to Seminole county; and for the further reason that the order fails to comply with the requirements of the statute giving the court jurisdiction, and he invokes section 1478, 1921 Statutes, in guardianship procedure, which provides as follows:

"All the proceedings under petition * * * accounting, and the settlement of accounts must be had and made as provided and required by the provisions of law concerning the estates of decedents, unless otherwise specifically provided herein."

¶7 The only section in the article in guardianship procedure referring to accounts is section 1461, which provides that the guardian must submit an account to the county court for settlement and allowance. It is clear from this that the county court must settle the accounts of guardianships in the same manner and under the same proceedings that the accounts of executors or administrators are settled. Section 1335, Comp. St. 1921, provides for the settlement of administrators, other than the final account, and...