Scott v. Boyce, 4-4807.

• Decision Date: 29 November 1937
• Docket Number: No. 4-4807.,4-4807.
• Citation: 110 S.W.2d 497
• Parties: SCOTT v. BOYCE.
• Court: Arkansas Supreme Court

Page 497

110 S.W.2d 497

SCOTT v. BOYCE.

No. 4-4807.

Supreme Court of Arkansas.

November 29, 1937.

Appeal from Circuit Court, Nevada County; Dexter Bush, Judge.

Proceeding by Joy Hubbard, an infant more than fourteen years of age, for the appointment of Wren Scott as her guardian, in substitution of J. R. Boyce. From a judgment for Boyce on his attempted appeal from the probate court, Scott appeals.

Reversed and remanded, with directions.

McRae & Tompkins, of Prescott, for appellant.

GRIFFIN SMITH, Chief Justice.

On October 3, 1936, Joy Hubbard appeared in the Nevada probate court and asked that appellant be appointed her guardian in substitution of appellee. She represented to the court that she was more than fourteen years of age. Finding such representation to be true, the court appointed the guardian of her choice. No notice of an intent to make the application was served on appellee, and this, on appeal to the circuit court, was successfully urged as ground for setting the appointment aside.

On January 2, 1937, appellee filed his affidavit for appeal to the circuit court, and the probate clerk certified a transcript of the proceedings. No order was made by the probate court allowing the appeal, nor does it appear that the affidavit, in which the appeal was prayed, was presented to the probate court.

The probate court has exclusive original jurisdiction in the matter of appointing guardians, and in instances where such appointments are made, aggrieved parties may, within one year, appeal to the circuit court. The circuit court, however, acquires no jurisdiction except through proper appeal.

It has been uniformly held by this court that the granting of an appeal by the probate court is a condition precedent to the acquisition of jurisdiction by the circuit court. In Speed v. Fry, 95 Ark. 148, 128 S.W. 854, 855, in an opinion written by Mr. Justice Hart, we said: "The record shows J. C. Speed filed an affidavit and prayer for appeal in the usual form to the circuit court, but it does not show that the probate court made an order granting the appeal. This was necessary in order to give the circuit court jurisdiction." See, also, Torrence v. Benton, 189 Ark. 963, 76 S.W.(2d) 74, and cases there cited.

The judgment is reversed, and the cause remanded, with directions to the circuit court to enter an order dismissing appellee's appeal from the probate court.