R. Hauenstein v. Gillespie

• Decision Date: 30 March 1896
• Citation: 19 So. 673,73 Miss. 742
• Court: Mississippi Supreme Court
• Parties: R. HAUENSTEIN ET AL. v. ROBERT GILLESPIE

19 So. 673

73 Miss. 742

R. HAUENSTEIN ET AL. v. ROBERT GILLESPIE

Supreme Court of Mississippi

March 30, 1896

March 1896

FROM the chancery court of Noxubee county HON. G. Q. HALL, Special Chancellor.

In 1867 Robert Gillespie was declared a lunatic by an inquisition of lunacy instituted by the probate court of Noxubee county, and a guardian of his estate was appointed. In 1872 Joseph Bardwell was appointed his guardian by the chancery court of Noxubee county, and gave proper bond. Afterwards, in 1878, he was required to give a new bond. Bardwell, under the bond thus executed, was the guardian of said Gillespie until his death in 1893. This is a suit in the chancery court of Noxubee county by Robert Gillespie, by next friend and guardian, against the bondsmen of Joseph Bardwell on the bond given in 1878. The bill alleges that Bardwell, after the execution of the bond sued on, was guilty of many defaults which were set out in the bill.

Defendants answered, and denied that Robert Gillespie was declared insane upon a duly authorized inquisition of Noxubee county and that Joseph Bardwell was duly appointed guardian, as alleged in the bill, in 1872. Defendants filed, as an exhibit to their answer, a copy of the records in the probate and chancery courts of Noxubee county in 1867 and 1872, whereby the adjudication of lunacy and the appointment of Bardwell had been made, and contend that this exhibit shows that Robert Gillespie was a resident of the state of Pennsylvania in 1867, when the proceedings declaring said Gillespie a lunatic were had and when Bardwell was appointed guardian and was not present and was not made a party to the proceedings, either by service of process on him or by publication of notice, and that the court had no jurisdiction over him and no power to adjudge him insane, and that the proceedings were wholly null and void. The bond sued on which was in the usual form of guardians' bonds, recited that Robert Gillespie was of Noxubee county." It was shown that Bardwell, who had died before the institution of the suit, without leaving any property subject to execution, had, on his appointment as guardian, taken possession of the estate of his ward, and exercised over it all the powers pertaining to his office as guardian, collecting rents and profits, selling land and collecting the purchase money, collecting dues of the estate by suit, etc.

On the hearing, complainant introduced depositions of various witnesses to show the collections alleged in the bill to have been made by Bardwell, guardian. To the depositions of several of the witnesses there were attached, as exhibits, copies of their account books and of a receipt, which the witnesses produced before the commissioner taking their depositions. They testified that the books were correctly kept by them, and permitted the commissioner to make copies of them, as he also did of the receipt. The witnesses had no interest in the litigation, and the account books and receipt were their private property. Defendant's objection to the admission of these exhibits was overruled. From a final decree for complainant, defendant appealed.

Affirmed and remanded.

Ham, Witherspoon & Witherspoon, for appellants.

1. The probate court of Noxubee county, in 1867, had jurisdiction only over lunatics residing in that county. Constitution of 1832, art. 4, § 18; Code 1857, p. 464, art. 155. In creating courts of probate the constitution had no reference to things or persons out of the state. 1 Freeman on Judgments, §§ 120, 120a, and cases cited in note; 1 Black on Judgments, §§ 297, 228; Cudabac v. Strong, 67 Miss. 705; 12 Am. & Eng. Enc. L., pp. 271, 272. An order of the probate court appointing a guardian to a lunatic residing beyond the limits of the state would be a mere nullity. (Counsel here went into a lenghty argument to show that the records filed as an exhibit to their answer, showed that Robert Gillespie was a resident of the state of Pennsylvania at the time he was adjudged a lunatic and when Bardwell was appointed guardian, and was when the bill in this case was filed.) If Gillespie was a resident of Pennsylvania, the probate court of Noxubee had no jurisdiction over him, and the attempted adjudication of lunacy was null and void. The jurisdiction of courts is confined within the territorial limits of the state or nation. 1 Freeman on Judgments, §§ 120, 120a, ; 1 Black on Judgments, §§ 227, 228; 12 Am. & Eng. Enc. L., pp. 271, 272. A court cannot adjudicate upon a person's rights, without having him, either actually or constructively, before it. A judgment or decree rendered against a party without notice, is void, and may be impeached collaterally. Notice is necessary, whether required by statute or not. Jack v. Thompson, 41 Miss. 49; Dorr, v. Rohr, 3 Am. St. Rep., pp. 108, 109, 110; Gregory v. Stetson, 133 U.S. 579; Brown v. Levee Commissioners, 50 Miss. 468; Ex parte Heyfron, 7 How., 128; Marks v. McElroy, 67 Miss. 547; 14 Mass. 223; 4 Gray, 64; Eslava v. Lepretre, 21 Ala. 522; McCurry v. Hooper, 12 Ala. 823. A person against whom proceedings are instituted to have him adjudged insane, has all the rights of a defendant, and has right to notice whether the statute requires notice or not, and, if he has no notice, the decree adjudging him insane will be null and void. Evans v. Johnson, 45 Am. St. Rep., 912; State v. Billings, 43 Ib., 525, and note; McCurry v. Hooper, 12 Ala. 823; Eslava v. Lepretre, 21 Ala. 522; 56 Am. Dec., 266; 14 Mass. 222; Allis v. Morton, 4 Gray, 64.

The basis of this bill is that (1) Robert Gillespie was duly adjudged a lunatic; (2) Bardwell was duly appointed guardian. These allegations of the bill are denied by the answer. Unless Gillespie had been duly adjudged by the probate court of Noxubee county, in 1867, neither the probate court nor the chancery court had any power to appoint a guardian of his person or estate. Code of 1857, art. 155, p. 464. No such proceedings were ever had, and the proceeding for that purpose in the probate court, in 1867, was wholly abortive. The appointment of the guardian at that time, and the subsequent appointment of Bardwell as guardian by the chancery court, were both null and void. 1 Freeman on Judgments, § 120; Griffith v. Frazier, 8 Cranch, 9. And the bond given by Joseph Bardwell was a nullity, and the defendants in this suit may set up the nullity of the bond. They are not estopped. Thomas v. Burrus, 23 Miss. 550; Boyd v. Swing, 38 Miss. 182; Earl v. Crum, 42 Miss. 165; Crum v. Wilson, 61 Miss. 233. Bardwell alone was responsible, personally, for any of the property of Robert Gillespie which may have come into his hands or possession. Thomas v. Burrus, supra; Early v. Crum, supra.

The court is invited to a careful examination of the following cases: Thomas v. Burrus, Earl v. Crum, Crum v. Wilson and Boyd v. Swing, supra. The code of 1892 recognized these cases as in full force, for they amended the old law (§ 2098, Code 1880; § 1206, Code 1871; and art. 143, Code 1857) upon the subject of guardians' bonds, by adding thereto these words, "whether the appointment be legal or not." Code 1892, § 2187. These words were doubtless added to obviate the effect of these decisions, in which it was held that, where the appointment of a guardian was illegal and void, the bond was void and the sureties could not be held liable.

2. The only authority adduced by complainant to sustain the admissibility of the copies from the books was the case of Moody v. Roberts, 41 Miss. 75. This case expressly decides that copies of accounts proved by witnesses to be correctly transcribed from the books, are not admissible as evidence. The competency of books in each case is a question for the court, and it must appear that they are the regular books of account, correctly kept and containing the original entries of the transactions. It is going far enough to permit the original book itself, after being inspected by the court, to be admitted as evidence. Moody v. Roberts, supra. The rule is the same in equity as at law. 13 Smed. & M., 720.

Ames & Drake, for appellee.

The adjudication of appellee's unsoundness of mind and the appointment of the first guardian were made by the probate court of Noxubee county, and the appointment of Bardwell to the guardianship was made by the chancery court of said county. The objections to them urged in this case were raised by demurrer on the former appeal, when it was decided that the proceedings in question were not open to collateral attack in this case. Gillespie v. Hauenstein, 72 Miss. 838. The court did not discuss the reasons for the holding, but referred to another case as decisive--Ames v. Williams, 12 Miss. 760.

If the original inquisition of lunacy is defective and shows want of jurisdiction in the court, defendants, who solemnly asserted in their bond that Bardwell was "guardian of Robert Gillespie, a lunatic of said county, " and so enabled him for more than fifteen years to control and misappropriate the funds of one whose actual lunacy they do not deny, ought to be estopped from denying what they have so solemnly and continuously asserted to the damage of appellee. The record shows that the court was on the point of removing Bardwell for insufficiency of his bond, and that defendants came forward and made the new bond which is the foundation of this suit. For more than fifteen years thereafter, armed with the security they had furnished, he held control of appellee's estate; made collections which he could not have made but for the acts of defendants in making this bond instituted and conducted to successful termination suits which he could not have maintained but for the character of guardian with which the act of appellants had clothed him, and thus, as a direct result of...