Powell v. Union Bank & Trust Co.

• Decision Date: 29 June 1911
• Citation: 173 Ala. 332,56 So. 123
• Parties: POWELL v. UNION BANK & TRUST CO.
• Court: Alabama Supreme Court

56 So. 123

173 Ala. 332

POWELL v. UNION BANK & TRUST CO.

Supreme Court of Alabama

June 29, 1911

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by the Union Bank & Trust Company, as guardian of Virginia Powell, against Bolling R. Powell and others for the sale of lands for partition. From a decree for complainant, defendant named appeals. Affirmed.

Daniel W. Troy and Edwards S. Watts, for appellant.

James S. Parrish, for appellee.

MAYFIELD J.

As stated in brief of counsel for appellant, "the sole question in this case is whether or not the proceedings by which the Union Bank & Trust Company claims to have become the guardian of Virginia Powell were void." It is admitted by the appellant that, if such proceedings were regular, the bill is well filed and the injunction properly granted.

The fact that the jury that made the inquisition and rendered the verdict pronouncing Virginia Powell insane was composed of 10, instead of 12, persons was a mere irregularity in the proceedings, and did not render the appointment of a guardian by the court absolutely void. Such question cannot be raised on collateral attack, for the purpose of denying or disputing the authority of the guardian so appointed to maintain or defend an action by or against such ward. The validity of the appointment and the authority of such guardian to represent the ward cannot be raised by a stranger to the proceedings in the probate court, and certainly not by a stranger to the proceedings in another and different court, and in a collateral proceeding on which the question arises only incidentally, as in this case.

If the appointment of such guardian and the proceedings of the probate court for that purpose are voidable, the matter should be corrected by appeal, or by a proceeding, instituted in that, or the chancery court, to rectify the same, or reversed and avoided in a direct proceeding for such purpose. Otherwise the proceeding will be still standing in the probate court, and, so far as concerns the appointment or the grant of letters of guardianship, will be perfectly valid though liable, on collateral attack, to be by some courts pronounced voidable or void, and by others valid--valid for some purposes, and void or voidable for others. It is not at all necessary that the records in the probate court shall disclose that the inquiry was made by a jury of 10 persons instead of 12. It is a mere incident,...