Shumard v. Philips

Decision Date08 March 1890
Citation13 S.W. 510
PartiesSHUMARD <I>et al.</I> <I>v.</I> PHILIPS <I>et al.</I>
CourtArkansas Supreme Court

Appeal from circuit court, Sebastian county; JOHN S. LITTLE, Judge.

J. T. Hurley, P. J. M. MacGreevy, and Duval & Cravens, for appellants. E. E. Bryant and Clayton, Brizzolare & Forrister, for appellees.


This is an action of ejectment brought by the appellants. They deraign their title to the land in controversy from the government. The appellees assert that the appellants' title was divested by sale under a decree of the Sebastian circuit court, and has come to them through conveyances from the purchasers at the judicial sale. The validity of the decree under which the sale was had is the sole question for our determination. The decree purports to have been entered by the Sebastian circuit court on the 5th day of November, 1870, upon the petition of the plaintiffs' mother, who claimed to be acting in the capacity of their statutory guardian; they being infants at the time. The object of the petition, which was attained by the decree entered in pursuance of its prayer, was to sell the land in dispute for the support of the infants. The sale took place in January, 1871, and was soon after regularly confirmed. The decree is assailed upon the ground (1) that the court rendering it was not held at the time or place prescribed by law; (2) that the petitioner for the sale was not the statutory guardian of the minors, and had no authority to appear for them, because appointed by a probate court held at a time and place not prescribed by law; and (3) that, in any event, the probate court had exclusive jurisdiction of the estates of the minors, and that the circuit court was without power to order the sale. The argument is that for each of these reasons the decree of the circuit court is coram non judice and void, and that the title of the appellants is therefore unimpeached.

The confusion about the time and place fixed by law for the courts to convene comes from that prolific source of evil, the division of a single county into two judicial districts, which was begun in the session of the legislature of 1860-61, when the division of Sebastian county was made. The statute provided for holding probate and circuit courts at Ft. Smith, as well as at Greenwood, the county-seat, and fixed the times for them to convene at each place. For a time the local authorities acted under the belief that the county-seat had been removed by an order of the county court, in pursuance of a vote of the people, from Greenwood to Ft. Smith, and that Ft. Smith was the only legal place for holding courts in the county. During that time the holding of courts at Greenwood was abandoned. See Patterson v. Temple, 27 Ark. 202, and Ex parte Jones, Id. 349. It was during this time that the orders now questioned were made. The probate judge undertook to hold probate court at Ft. Smith on the day the law prescribed for the meeting of that court at Greenwood, and on that day caused an order to be entered on the records appointing Mrs. Shumard guardian of the plaintiffs; and the circuit court which rendered the decree, upon her petition, for the sale of her children's lands, convened at Ft. Smith, as at the opening of a regular term, at a time not authorized by law. The latter court continued in session, however, adjourning from day to day, until the fifth Monday after the fourth Monday in September, which was the time prescribed by law for the opening of the fall term of the circuit court at Ft. Smith. Acts Feb. 4, 1869; Ex parte Jones, supra. When the court convened on that day at the place prescribed by the statute, it was invested with all the judicial power conferred upon it by law. The previous illegal meeting of the officers had no blighting effect upon the subsequent rightful convening of the court, and its judgments thereafter were as binding as those of the same court at any other regular term. The decree in controversy was rendered after the court had rightfully convened, and while it was legally in session. The question therefore is, had the court jurisdiction to order the sale of the infant's lands upon the petition of Mrs. Shumard?

In answering this question, we are not embarrassed by the appearance of a stranger, as next friend for a minor, invoking the power of the court for the sale of the infant's estate; for, regarding the action of the probate court in ordering the appointment of Mrs. Shumard as a nullity, upon the ground that the order was made when the court was not legally in session, subsequent action had in reference thereto shows that she was clothed with the authority and responsibility of a statutory guardian. The clerk of the probate court at the time indicated, as now, was authorized to appoint guardians in vacation, subject to the approval of the court. Mansf. Dig. § 3462. When letters of guardianship are issued by the clerk, and a bond is filed with him, the person to whom the letters issue is authorized to enter upon the discharge of the duties of guardian; and as was said by Judge WALKER in delivering the opinion of this court in Knott v. Clements, 13 Ark. 335, the letters so issued must be regarded as legally granted until it is shown that they have been rejected by the court; the silent acquiescence of the court in the action of the clerk in vacation being taken as confirmation of the letters issued by him, as against collateral attack upon the guardian's authority. In this case the probate court for the Ft. Smith district of Sebastian county was the court having jurisdiction to issue or confirm letters for the guardianship of the plaintiffs; for they were domiciled in that district, and all the property of, which they were seised appears to have been situated therein. The letters were issued by the clerk, in the vacation of that court, to Mrs. Shumard, after she had entered into the statutory bond, with sureties. The previous unauthorized action of the judge in ordering her appointment neither added to nor detracted from the rightful action of the clerk in granting the letter. No subsequent confirmation of this grant of letters is shown or disproved; but, conceding that none was had, it appears that Mrs. Shumard rendered her accounts to, and was recognized by, the probate court as guardian. She comes, then, within the rule then laid down in Knott v. Clements, and the validity of her appointment cannot be questioned in this...

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