Nelson v. Cowling

• Decision Date: 08 February 1909
• Citation: 116 S.W. 890
• Parties: NELSON v. COWLING.
• Court: Arkansas Supreme Court

Page 890

116 S.W. 890

NELSON v. COWLING.

Supreme Court of Arkansas.

February 8, 1909.

On Rehearing, March 1, 1909.

Appeal from Circuit Court, Howard County; Jas. S. Steel, Judge.

Proceeding by S. C. Cowling, guardian of Bettie Jones, against J. A. Nelson to compel him to account as administrator of J. J. Nelson, the former guardian. From a confirmation of the settlement by the probate court, petitioner appealed to the circuit court, and from a judgment ordering a resettlement of all the former guardian's accounts, the administrator appeals. Reversed.

On April 13, 1907, S. C. Cowling, as guardian of Bettie Jones, an insane person, filed a petition in the probate court of Howard county, alleging that, prior to the year 1903, J. J. Nelson had been her guardian for about 10 years, and as such guardian had the exclusive control and charge of all her property; that during the year 1903 he was discharged from said guardianship, and has since died. That neither he nor his administrator, J. A. Nelson, has ever made a final settlement of his guardianship with the probate court. There was a prayer for a citation to compel the administrator of the deceased guardian to account. A citation was duly issued in response to it, the administrator stated that a final settlement had been filed, but had never been acted upon by the court. That the records of the probate court failed to show the filing of said account, and that the same had now become lost or mislaid. On the 12th day of October, 1907, said administrator filed in the probate court a final settlement of his intestate's account with Bettie Jones. Exceptions were filed to it by Cowling, the present guardian. Upon a hearing, the court found the settlement to be correct and confirmed it. On the same day, Cowling filed his affidavit and prayer for appeal to the circuit court, which was granted. On a trial in the circuit court, the presiding judge examined the nine previous settlements of J. J. Nelson, as guardian of Bettie Jones, the last of which had been approved and confirmed by the probate court on April 26, 1900, heard testimony pertaining to the same, and rendered a judgment ordering the probate court to restate all of the accounts of said Nelson, as guardian, in conformity with his findings. From this judgment an appeal has been duly prosecuted to this court.

Sain & Sain and T. D. Crawford, for appellant. J. W. Bishop and W. P. Feagel, for appellee.

HART, J. (after stating the facts as above).

The appeal in this case raises the question of whether the nine previous settlements are involved in this proceeding, an appeal not having been taken from the judgments of the probate court, confirming them, within 12 months after each of them was rendered. Section 5075, Kirby's Dig., reads as follows "If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under 21 years of age, or insane, or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed." Counsel for appellee insist that this section takes this case out of the requirements of section 1348, Kirby's Dig., which provides that all appeals from judgments of the probate courts shall be taken within 12 months from the rendition thereof. Their contention is that an appeal from the judgment of confirmation of a probate settlement constitutes the bringing of an action within the meaning of section 5075 of the Digest. We do not think so. Section 34, art. 7, of the Constitution, vests the probate court with exclusive original jurisdiction relative to the estates of deceased persons, executives, administrators, guardians, and persons of unsound mind. The section following provides that "appeals may be taken from judgments and orders of the probate court to the circuit court under such regulations and restrictions as may be prescribed by law." The Legislature restricted the appeals to a period of time within 12 months after the judgment was rendered. We think it clearly deducible from the sections of the Constitution above quoted that its framers contemplated that an existing controversy should be an essential requisite to appellate jurisdiction, and that an appeal should be but a continuation of the suit below, and not the bringing of a new action. In the case of Phelps et al. v. Buck, 40 Ark. 220, it was held that the confirmed settlements of guardians in the probate court cannot afterwards be disturbed except in chancery for fraud or some other recognized ground of chancery jurisdiction.

In the absence of some recognized ground of chancery jurisdiction, the judgment of confirmation of the probate court is conclusive of all matters embraced in the settlement; for they may be said to be adjudicated. But the judgment is not conclusive as to matters omitted from the account; for these matters have not been examined or considered by the court, and that which has not been tried cannot be said to be adjudicated. Therefore they may be surcharged in subsequent settlements. Warner on the Law of Administration, vol. 2, pages 1126, 1128; Hankins v. Layne, Ex'r, et al., 48 Ark. 544, 3 S. W. 821. The record does not disclose that any items were left out of the previous settlements, which should have been included therein; but it affirmatively shows that all the items relative to these settlements, which are now complained of, were embraced therein, and that they were considered by the probate court before the accounts were confirmed. We think, therefore, it is clearly deducible from the authorities supra that the judgments confirming the previous settlements, whether erroneous or not, are now res adjudicata for the reason that no appeal was taken therefrom within the period of 12 months next from the rendition thereof.

This brings us to a consideration of the tenth settlement. No exception is made to the action of the probate court in allowing interest on the amount claimed to be due the estate of the former guardian; but exceptions were not necessary. It was said in the case of Crow, Guardian, et al. v. Reed, 38 Ark. 482: "The probate judge should not wait to be moved to correct errors in accounts of such fiduciaries, as he is required to supervise, but should refuse to confirm any settlement obviously improper. Otherwise the interests of minors might often be sacrificed by failure of vigilance on the part of near relatives and friends." In the present case, the probate court removed J. J. Nelson from the guardianship in 1903, and appointed S. C. Cowling guardian in his stead. Section 4044 of Kirby's Digest provides that whenever any guardian of an insane person shall be removed from his trust he shall immediately settle his...