Parmenter v. Rowe
| Decision Date | 29 March 1921 |
| Docket Number | Case Number: 11226 |
| Citation | 1921 OK 107,200 P. 683,87 Okla. 158 |
| Parties | PARMENTER, Guardian, v. ROWE, County Judge, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Prohibition--When Writ Lies. Prohibition is the proper remedy where an inferior court assumes to exercise judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it.
2. Guardian and Ward -- Jurisdiction--County Court. The county court of the county in which application is first regularly made for letters of guardianship shall have jurisdiction co-extensive with the state in the settlement of the estate of the incompetent, and for the determination of any and all questions incident thereto, subject to the appellate jurisdiction of the district court.
3. Same--Appointment of Guardian--Collateral Attack--Conflicting Jurisdictions--Prohibition. Where a county court of this state appoints a guardian over the person and estate of an incompetent person and such proceedings are regular upon their face, the same are not subject to be attacked collaterally, and the court having assumed jurisdiction and made the appointment, such jurisdiction is co-extensive with the state and excludes the jurisdiction of the county court of every other county, and such taking of jurisdiction and making such appointment was the finding of every jurisdictional fact necessary to such appointment, and every other county court in the state is without jurisdiction to appoint a guardian for such incompetent, and where another county court assumes jurisdiction and does appoint another guardian, it assumes a jurisdiction expressly excluded by law, and in so doing, makes an unwarrantable application of judicial force, and where it is made to appear that such action of the latter court will lead to an intolerable conflict of jurisdiction between it and the county court first assuming jurisdiction, this court will let the writ of prohibition issue against the latter court.
Cutlip & Horsley, for relator.
A. M. Fowler, for respondents.
¶1 This is an original proceeding commenced in this court on the 25th day of February, 1920, by R. W. Parmenter, as the guardian of Martha Jackson, an incompetent, for the purpose of procuring a writ of prohibition to be issued out of this court and directed to the county court of Okfuskee county, and the judge thereof, and W. E. McKinney, who was upon the order of said court appointed guardian of the estate of Martha Jackson, an incompetent, commanding them and each of them to desist and refrain from further proceeding in the matters of said guardianship. The application of the relator shows, in substance, that Martha Jackson is a full-blood Creek Indian, and that prior to statehood she resided in the Indian Territory, and that her nearest court town was Wewoka, and that her father, Saber Jackson, presented a petition in the proper court at Wewoka for the appointment and was by the court appointed guardian of both her person and estate; that upon the erection of the state of Oklahoma out of the Oklahoma and Indian Territories, under proper orders of the court and provisions of the law governing such matters, such guardianship was duly transferred to Okemah, in Okfuskee county, Oklahoma; that after statehood, and probably in the year 1909 or 1910, proper petition for removal was filed by said guardian in the county court at 0kemah, Okla., praying that said cause be removed to Seminole county, Oklahoma, for the reason that said Martha Jackson and Saber Jackson were both residents of said county, and said cause was duly and legally removed from Okfuskee county to Seminole county, and said minor's guardianship has ever since such removal been pending in the county court of Seminole county; that after the removal of said cause to Seminole county, and after said minor had reached the age of 14 years, Saber Jackson was removed as such guardian by the county court of Seminole county, and the relator, upon a written nomination of such minor, was by said county court duly appointed the guardian of both the person and estate of the said Martha Jackson, gave bond and qualified as by law provided, and remained such guardian of said minor up to the time of reaching her majority, and his appointment by said county court as guardian of Martha Jackson, as an incompetent, and at said time he was a resident of Seminole county, and is at the present time, and has had charge of both the person and estate of said minor during all of said times; and that the said minor was also a resident in good faith of Seminole county at the time he was appointed guardian of her estate, and that the county court of said county was the proper court of this state having jurisdiction of both the person and estate of said Martha Jackson and that according to the rolls prepared by the Dawes Commission to the Five Civilized Tribes said Martha Jackson reached the age of 18 years on the 10th day of May, 1919, and that sometime prior to the said 10th day of May, 1919, to wit, on the 23rd day of April, 1919, there was filed in the county court of Seminole county a petition by H. A. Archard, field clerk, representing the Secretary of the Interior of the United States, stating in substance that said minor was about to come of age, that she had a large estate, that she was an incompetent person, and that she should be so adjudged, and a guardian appointed for her person and estate in order to protect her property and estate from artful and designing persons who would when she became of age, cheat and swindle her of her said estate; and that, thereafter, on the 23rd day of April, 1919, the county court of Seminole county entered its order directing that notice be given to the duly appointed guardian of said minor, R. W. Parmenter, in person upon said minor, and upon the father, Saber Jackson, more than five days before the date of the hearing, and set the hearing of said petition for the 5th day of May, 1919, at the hour of 10 o'clock a. m. on said date. And that thereafter, on the 24th day of April, 1919, said notice was served upon the relator as guardian, and on the 28th day of April, 1919, said notice was duly served upon Saber Jackson, the father of said minor, by Frank Grall, as sheriff of Seminole county, and said notice was duly served upon Martha Jackson in person by the sheriff of Sequoyah county, Okla., in which county she was attending school at the Dwight Indian Training School under the authority and direction of her guardian, R. W. Parmenter, and the county court of Seminole county, and that on the 5th day of May, 1919, the day set for the hearing of said petition, the county court of Seminole county entered its order continuing said hearing until the 9th day of May, 1919; that thereafter, on the 6th day of May, 1919, it being made to appear to the county court of Seminole county that certain parties had gone to the school where the said R. W. Parmenter, guardian, had placed the said Martha Jackson for education and instruction, and stolen said minor away without the knowledge or consent of either the said guardian or the county court of Seminole county, thereupon said county court entered its order directing said guardian or sheriff of Seminole county to make search for the said minor and to bring her into court if she were found, and suffer no interference under penalty of the law; that thereafter, on the 9th day of May, 1919, at the hour of 10 o'clock a. m., the said date, said petition to have the said Martha Jackson adjudged an incompetent came regularly on for hearing at which hearing the said Saber Jackson filed his protest, and upon the hearing of said petition and protest said county court adjudged the said Martha Jackson to be an incompetent person and incapable of taking care of herself and estate, and that the relator was the proper and suitable person to be appointed guardian of said incompetent, and overruled the protest of the said Saber Jackson, who excepted to the order of said court and prayed an appeal to the district court. That the relator duly qualified as guardian of the person and estate of said Martha Jackson, an incompetent, by taking the oath and giving bond as required by law, and that on the 12th day of May, 1919, Saber Jackson gave notice of his appeal to the district court upon both questions of law and fact and filed his appeal bond in the sum of $ 200. The findings of the county court and order appointing the relator guardian of the person and estate of Martha Jackson, an incompetent, were as follows:
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