Shumard v. Phillips

Decision Date08 March 1890
CourtArkansas Supreme Court

APPEAL from Sebastian Circuit Court, Fort Smith District, JOHN S LITTLE, Judge.

Judgment affirmed.

J. T Hurley, P. J. M. MacGreevy and Duval & Cravens for appellants.

1. Isabella Shumard was never appointed guardian by any legal court, or by any clerk of any court in vacation. The law under which she claimed to act is found in ch. 81 Gould's Dig., secs. 1, 2, 9, 10, 12, 28, etc.

There could be no legal court held on July 18, 1870, and as a probate court for the Fort Smith district, it never in law had an existence. Gould's Dig., ch. 49, p. 316; acts 1861, p. 432-4. On the 18th July, 1870, the court should have been held at Greenwood. Acts 1861, sec. 2, p. 432. The letters granted Mrs. Shumard were void. 2 Ark. 229; 20 Ark. 77; 27 Ark. 349; 48 Ark. 229; 48 Ark. 155; 24 Ark. 479.

Nor were the letters issued by the clerk in vacation as provided by law. Gould's Dig., ch. 81, sec. 2; 5 Ark, 367; 32 Ark. 97; 2 Wall. 342.

No application was ever filed; the approval of the bond and order for the letters were a nullity. 32 Ark. 97.

2. The sale was void because a court of chancery had no jurisdiction. Exclusive jurisdiction was vested in the probate court. Gould's Dig., ch. 48, sec. 2; Const. 1836, art. 6, sec. 10, and sec. 3 of amendment to same, 1848; sec. 12, art. 12, Const. 1864; sec. 5, art. 7, Const. 1868; Acts 1861, sec. 9, p. 434; 26 Ark. 373; 33 Ark. 727; 34 Ark. 63; 36 Ark. 383; 40 Ark. 411; 36 Ark. 390; 34 Ark. 71.

The exclusive jurisdiction of probate courts is settled by 5 Ark. 385; 7 Ark. 48; 11 Ark. 519; 17 Ark. 122; 18 Ark. 600; 23 Ark. 93; 26 Ark. 421; 27 Ark. 564; 34 Ark. 63; 36 Ark. 529; 40 Ark. 441; 48 Ark. 544.

3. The circuit court which made the order commenced the 17th of October, 1870, at Fort Smith, and was not a legal court. 27 Ark. 349; Act 1869, p. 31, adjourned session; 2 Ark. 229; 20 Ark. 77; 24 Ark. 479; 27 Ark. 349; 34 Ark. 575; 48 Ark. 155, 227-9.

E. E. Bryant for appellees.

1. In the absence of a statute conferring jurisdiction on some court to order the sale of an infant's land for his maintenance and education, chancery would have inherent jurisdiction to make such order. 38 Am. Rep., 13; 46 Am. Rep., 418; 37 Am. Rep., 111; 1 Tenn. Chy., 298; 4 Heisk., 370; 3 Bland, 186; 4 A. 886; 3 John. Chy., 347; 5 John. Chy., 163; 38 Barb. 473; 3 Denio, 18; 2 Gr. Ch., 20; 59 Ga. 722; 11 Ired. L., 616; 2 Kent, Com., 230; Story, Eq. Jur., sec. 1357; 2 Perry, Trusts, sec. 605; 45 Ark. 41-46.

Where equity has original jurisdiction, it is not taken away by statute conferring jurisdiction in similar cases upon another court, unless the statute expressly or by necessary implication excludes the equity jurisdiction; the jurisdiction becomes concurrent in the two courts. 55 Am. Dec., 74 and note; 18 Ark. 583; 33 Ark. 425; 28 Ark. 19; 38 Ark. 406; 64 Ala. 350; 24 Gratt., 315; 82 N.C. 328, etc., etc.; Pom., Eq. Jur., sec. 182; 45 Ark. 46.

2. Since the clerk could have issued letters in vacation (Gould's Dig., ch. 81, sec. 2), their issuance on petition, affidavit and bond and the subsequent recognition by the court was a sufficient compliance with statute. But if irregular, they are not assailable collaterally. Schouler, Ex'rs., etc., sec. 192; 39 Ill. 554; Rorer, Jud. Sales, secs. 482, 284; 67 Am. Dec., 298; 16 Tex. 417; 12 Tex. 449; 18 Tex. 179; 44 Ark. 411; 26 Ark. 421, 13 Ark. 178.

3. The court was sitting at Fort Smith, and held by the proper person as judge, and the order was made November 5, 1870, within the time for holding the October term of the circuit court. Acts 1869, adjourned session, p. 31. All presumptions are in favor of the legality of the courts, in the absence of showing to the contrary. 16 N.E. 378, 383; 4 N.E. 449; 32 Ark. 691.

Clayton, Brizzolara & Forrester of counsel 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 grounds, (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 1860-1, when the division of Sebastian county was made. The statute provided for holding probate and circuit courts at Fort 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 Fort Smith, and that Fort 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 Jones, ex parte, 27 Ark. 349.

It was during this time that the orders now questioned were made. The probate judge undertook to hold probate court at Fort 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 Fort 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 Fort Smith. Act February 4, 1869; Jones, ex parte, 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 infants' 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. 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 Fort 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 seized 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...

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