Smith v. Young

• Decision Date: 09 March 1909
• Parties: SMITH v. YOUNG.
• Court: Missouri Court of Appeals

117 S.W. 628

136 Mo. App. 65

SMITH v. YOUNG.

St. Louis Court of Appeals. Missouri.

March 9, 1909.

1. GUARDIAN AND WARD (§ 8) — APPOINTMENT OF GUARDIAN—JURISDICTION—DOMICILE.

The jurisdiction of the probate court to appoint a guardian or curator for a minor is fixed by the domicile of the minor.

2. DOMICILE (§ 5)—MINORS.

As a general proposition, the domicile of the parents is the domicile of the minor, except where both parents are dead and the child is domiciled with the grandparents, who are next of kin and stand in loco parentis to the minor, in which case the domicile of the grandparents is the domicile of the minor.

3. GUARDIAN AND WARD (§ 4) — NATURAL GUARDIAN.

Rev. St. 1899, § 3478 (Ann. St. 1906, p. 1991), declaring that the father while living, and after his death, or when there shall be no lawful father, then the mother, shall be the natural guardian and curator of the child, is merely declaratory of the common law.

4. DOMICILE (§ 5)—CHILDREN—REMOVAL OF CHILD.

In general, the removal of a child from one county to another by its guardian does not operate to change the domicile of the child, and this though both parents are dead, and the guardian is the child's grandfather.

5. DOMICILE (§ 5)—MINORS.

Though the guardian of a minor, under 14 years of age may not change the domicile of the child by the mere fact of removing it to another county, if the guardian is the child's grandfather and next of kin, standing in loco parentis, his removal of the child from one county to another operates as a change of the child's domicile.

6. PARENT AND CHILD (§ 2)—SURRENDER OF CUSTODY.

The father's agreement, on surrendering an infant child to its grandparents, that they should retain the child ever afterwards, was revocable at the will of the father, and would be revoked as a matter of law by the death of the father in case the mother survived.

7. DOMICILE (§ 5)—CHILDREN—PERSONS IN LOCO PARENTIS.

On the death of the child's mother, it was given to its grandparents by the father, who died without revoking his promise that the grandparents should retain the custody of the child free from the father's interference. Held, that on the father's death the grandparents, by operation of law, assumed the position of parent to the child, so that their domicile became the child's domicile.

8. GUARDIAN AND WARD (§ 8) — APPOINTMENT —PROBATE COURT—JURISDICTION.

Probate courts are possessed of original and exclusive jurisdiction with respect to the matter of guardians and curators of minors; and their right to proceed, resting in part in pais, must be found as a fact by the court when proceeding to exercise its jurisdiction.

9. JUDGMENT (§ 498)—COLLATERAL ATTACK —DETERMINATION AS TO JURISDICTION.

Where the jurisdiction of the probate court to appoint a curator for a minor depended on the minor's domicile, the determination of such fact in favor of the court's jurisdiction was conclusive, and could not be collaterally attacked.

10. JUDGMENT (§ 521) — APPOINTMENT OF GUARDIAN—COLLATERAL ATTACK.

A proceeding in the probate court of L. county to set aside the judgment of that court given at a prior term, by which defendant was appointed curator of a minor under 14, alleged to have been domiciled in P. county, where plaintiff was appointed, constituted a collateral attack on the judgment of the probate court of L. county.

11. JUDGMENT (§ 336)—DIRECT ATTACK.

A motion to vacate a judgment, filed at the term at which the judgment was entered, is a proper form of direct attack on the judgment.

12. JUDGMENT (§ 489) — VOID JUDGMENT — COLLATERAL ATTACK.

Where the record on its face shows that the court was not possessed of jurisdiction in the cause, the judgment is void, and may be assailed in a collateral proceeding, or set aside at a future term of the same court, but if it is fair on its face, it may not be assailed at all in a collateral proceeding, nor in any manner at a subsequent term other than a direct proceeding to that end.

13. GUARDIAN AND WARD (§ 13)—APPOINTMENT OF GUARDIAN—INVALIDITY—APPEAL.

An appeal will not lie from a probate order appointing a guardian, but will lie from the refusal of the court to vacate such appointment.

14. JUDGMENT (§ 334)—WRIT OF ERROR CORAM NOBIS.

The writ of error coram nobis will lie only in cases where the court has proceeded on the assumption that a fact existed which was material to its right to proceed, when the fact did not exist at all, and has no application to a case where the court was required to and did find the fact conferring jurisdiction from extrinsic evidence.

15. AUDITA QUERELA (§ 1)—NATURE OF PROCEEDING.

The common-law writ of audita querela is one by which a proceeding may be had by a judgment defendant in the court wherein the record lies to review the judgment on account of some matter occurring after judgment amounting to a discharge of its obligation.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Proceeding by Charles H. Smith against William R. Young. From a circuit court judgment denying plaintiff relief on appeal from an order of the probate court refusing to vacate the appointment of defendant, Young, as curator of the estate of Etta Louise Jackson, a minor, plaintiff appeals. Affirmed.

This proceeding originated in the probate court of Lincoln county. It is sought thereby to have that court vacate and set aside its judgment given at a prior term, by which the defendant, Young, was appointed curator of the estate of Etta Louise Jackson, a minor under the age of 14 years. Plaintiff was appointed curator of the minor's estate by the probate court of Pike county, where it is claimed the minor was domiciled. Besides praying the probate court of Lincoln county to set aside the appointment of the defendant curator, Young, he prays that Young, the Lincoln county curator, be required to transfer the minor's estate to the plaintiff for administration, under the supervision of the probate court of Pike county. The probate court having denied the relief prayed for, plaintiff appealed to the circuit court. Upon a hearing in that court, the prayer of the plaintiff's petition was denied and the judgment of the probate court affirmed. By the refusal of certain instructions asked on the part of the plaintiff, it appears the circuit court declared the proceeding to be a collateral attack upon the judgment of the probate court of Lincoln county. From this judgment, plaintiff prosecutes an appeal to this court.

Under our statute, the probate court of the county in which the minor is domiciled is possessed of the power to appoint guardians and curators. Plaintiff insists that the minor, Etta Louise Jackson, was domiciled, after the death of her father, in the county of Pike, and that therefore he is the rightful curator of her estate, for the reason the probate court of Pike county alone was possessed of jurisdiction to make such appointment. On the other hand, the defendant insists that the minor's surviving parent, William A. Jackson, was a resident of the city of Troy, in Lincoln county, at the time of his death, and, even though the child was living at the time with its grandfather in Pike county, the probate court of Lincoln county was possessed of the power to appoint him curator, for the reason the domicile of the parent is the domicile of the child. On this question, much testimony was introduced in the circuit court. It seems that plaintiff insisted, first, that if the minor's father, William A. Jackson, had acquired a residence in Missouri at all, it was at Louisiana, in Pike county; and, second, that, whether he had acquired a residence or not, his child, Etta Louise, was actually domiciled in that county with its grandfather after the death of her father, and that therefore the jurisdiction of the probate court of Pike county rightfully attached. On the other hand, the defendant insisted that the city of Troy, in Lincoln county, was the domicile of William A. Jackson, and that the child, Etta Louise, was residing temporarily only with her grandfather in Pike county. From a careful perusal of all the testimony in the record, it appears to greatly preponderate in favor of the proposition that William A. Jackson had acquired a residence and was domiciled at Troy, in Lincoln county. However this may be, it appears the child was at the time, and had been for a considerable period theretofore, residing with her grandfather at Louisiana, under a promise given by her father to the grandparents that he would never remove her therefrom. The mother of the little child had departed this life some time before her husband, and upon the death of William A. Jackson, the father, the grandfather, Charles H. Smith, with whom the child resided at Louisiana, was next of kin.

To recite the facts in the record, it appears that William A. Jackson, a most excellent citizen, had been reared at or near Troy, in Lincoln county. He was elected to and had served in the office of county clerk for that county. About that time he married Miss Smith, daughter of Charles H. Smith, of Pike county. After his marriage, he and his wife boarded for a time with the family of his friend, Senator Avery, of Troy. He then purchased a home in Troy, and kept house for a considerable period. His term of office as county clerk having expired, he removed to Texas and followed the vocation of traveling salesman. After this, he removed to England, Ark., and embarked in business. While residing at England, Ark., the little girl, Etta Louise, was born. Mrs. Jackson died the following day. Mr. Jackson brought her remains to her former home at Louisiana, Mo., where she was buried. It seems Mrs. Jackson had requested, before her death, that her child should be given into the keeping of her friend, Mrs. Avery, of Troy. Immediately after the burial of his wife, Mr. Jackson communicated her request to Senator Avery with respect to the child. Mrs. Avery's health was very poor at...