State v. Bird

• Decision Date: 24 December 1913
• Parties: STATE ex rel. BAKER et al. v. BIRD et al.
• Court: Missouri Supreme Court

162 S.W. 119

253 Mo. 569

STATE ex rel. BAKER et al. v. BIRD et al.

Supreme Court of Missouri.

December 24, 1913.

1. GUARDIAN AND WARD (§ 8) — PROBATE COURTS.

Const. art. 6, § 34, gives probate courts specific jurisdiction over the appointment of guardians of minors, and, the statutes being confirmatory of this jurisdiction, the right of the probate court to appoint a guardian of a minor cannot be questioned.

2. COURTS (§ 199)—PROBATE COURTS.

Under Const. art. 6, §§ 34, 35, providing that the General Assembly shall create probate courts with uniform jurisdiction and duties, the Legislature may vest in the probate court such additional powers, not named in the Constitution, as is deemed proper.

3. COURTS (§ 200¼)—EQUITY JURISDICTION —PROBATE COURTS.

Probate courts cannot exercise general equity powers, although they may apply equitable principles concerning a matter over which they have jurisdiction.

4. GUARDIAN AND WARD (§ 25)—REMOVAL OF GUARDIAN—POWER OF PROBATE COURT.

As the probate courts have been granted no general equity powers, those tribunals have not the equity power to remove a guardian, but are confined to the grounds of removal specified in the statute.

5. COURTS (§ 202) — PROBATE COURTS — EFFECT OF APPEAL.

The nature of an action does not change by its transfer on appeal from one court to another; consequently, the circuit court, although possessing chancery powers, cannot, upon appeal from the probate court, enter a judgment removing a guardian, where the probate court lacked the chancery power to decree such removal.

6. GUARDIAN AND WARD (§ 25)—REMOVAL OF GUARDIAN—RIGHT TO REMOVE.

Rev. St. 1909, § 462, provides that guardians may be removed for like causes as administrators; while section 50 provides that, if any executor or administrator become of unsound mind, or be convicted of a felony, absent himself from the state, become an habitual drunkard, or in anywise incapable or unsuitable to execute the trust reposed in him, he may be removed. Held, that the words "become unsuitable to execute his trust" do not authorize the removal of a guardian merely because the guardian is of a different religious faith than that of his ward or his ward's parents.

7. GUARDIAN AND WARD (§ 25) — REMOVAL OF GUARDIAN—STATUTE.

Under Rev. St. 1909, § 424, providing that guardians may be required to give supplemental security or new bonds, and in default thereof, or for other good cause, may be removed by the probate court, a guardian cannot be removed merely because he is of a different religious faith than that of his ward or his ward's deceased parents.

8. CONSTITUTIONAL LAW (§ 84)—GUARDIAN AND WARD (§ 25)—RELIGIOUS BELIEF— NATURE OF OFFICE OF GUARDIAN.

The guardian of a minor occupies an office of trust within Const. art. 2, § 5, declaring that no person can, on account of his religious opinions, be rendered ineligible to any office of trust or profit under this state, especially as Rev. St. 1909, § 464, specifically designates the position of guardian as a trust and an office, and hence a guardian cannot be removed because of his religious beliefs.

9. GUARDIAN AND WARD (§ 25)—REMOVAL— STATUTES—"SURVIVING."

Rev. St. 1909, § 420, providing that a minor shall not be committed to the guardianship of a person of religious persuasion different from that of the parents, or of the surviving parent, if another suitable person can be procured, is only advisory, applying to the religious faith of the parents who may be living when the appointment is made, and not to the religious faith or persuasion of the parents who are dead, the word "surviving" meaning "remaining alive," and will not authorize the removal of a guardian because of a different religious faith from that of the deceased parents of the ward.

10. GUARDIAN AND WARD (§ 25)—REMOVAL OF GUARDIAN.

Owing to the affection which naturally springs up between an infant and his guardian, the guardian should not be removed, except for the most cogent reasons, and, while the state is interested that the ward shall receive proper religious instruction, the guardian should not be removed merely because his religious faith is not the same as that of the deceased parents of his ward, the state having no interest in perpetuating any particular form of religious worship.

11. COURTS (§ 202)—REMOVAL OF GUARDIAN —FINAL JUDGMENT—WHAT CONSTITUTES.

An order of the probate court removing a guardian is a final order within Rev. St. 1909, § 463, providing that appeals shall be allowed from any final order or judgment relating to guardians and wards in the same manner as appeals are allowed in cases of administration.

12. GUARDIAN AND WARD (§ 25)—REMOVAL —EFFECT OF APPEAL.

Where an appeal was taken to the circuit court from an order removing a guardian in accordance with Rev. St. 1909, § 463, providing that appeals from final orders of the probate court relating to guardianship may be allowed as in cases of administration, the appeal superseded the order of removal; section 289 authorizing an appeal from an order revoking letters of administration, and section 294 providing

that such appeal shall act as a supersedeas.

13. GUARDIAN AND WARD (§ 25)—REMOVAL— EFFECT OF APPEAL.

Under Rev. St. 1909, §§ 2038, 2042, respectively providing for appeals from final judgments, and that the allowance of an appeal shall stay execution where the appellant shall be an executor or administrator, guardian or curator, an appeal by a guardian from a judgment of the circuit court affirming an order of the probate court removing him operates as a supersedeas.

14. COURTS (§ 95)—PRECEDENTS—DECISIONS OF OTHER STATES—APPELLATE PRACTICE— NATURE OF APPEAL.

Appeals are creatures of statute, and hence decisions regarding the appellate practice of other states are of no value as precedents.

15. APPEAL AND ERROR (§ 19)—HYPOTHETICAL CASES.

The Supreme Court will not determine hypothetical or imaginary cases.

16. COURTS (§ 202)—PROBATE COURT—APPEAL —EFFECT.

Under Rev. St. 1909, § 297, providing that the clerk of the circuit court shall certify a transcript of the record and proceedings to the court whence the appeal was taken, the circuit court, having determined an appeal from an order of the probate court removing relator as guardian, should remand the proceeding for enforcement by that tribunal, and is without jurisdiction to attempt to enforce compliance with the order of the probate court by citation for contempt.

17. PROHIBITION (§ 28)—MOOT QUESTION.

On prohibition by a guardian who had been ordered removed by the probate court, where the order of removal was held invalid, the validity of a deed of adoption, whereby the guardian adopted the minor, will not be determined, the question being moot.

Bond, J., dissenting.

In Banc. Prohibition by Cornelius B. Baker and others against Daniel E. Bird and others. Temporary rule made permanent.

Prohibition in this court to prevent further proceedings by respondent Daniel E. Bird, as judge of the circuit court of Jackson county, Mo., under a citation to plaintiffs for contempt in failing to deliver a minor into the custody of respondent George A. Dixon, pursuant to an order entered by said circuit court. A brief history of the judicial proceedings which resulted in the citation for contempt is necessary to a full understanding of the issues in this case.

On July 22, 1911, one Charles Dixon, a resident of Jackson county, Mo., the father and only surviving parent of Charles Dixon, Jr., departed this life, without having nominated any person as testamentary guardian of his said minor child. On August 1, 1911, the probate court of Jackson county appointed the plaintiffs Cornelius B. Baker and Susan M. Baker, his wife, as guardians of the person of the said minor, Charles Dixon, Jr. Susan M. Baker is the maternal aunt of said minor. The said guardians received said minor into their custody, and gave bond for the faithful performance of the trust cast upon them by the law. On September 25, 1911, a petition was filed in the probate court of said Jackson county, praying that the appointment of plaintiffs as guardians of the person of said minor, Charles Dixon, Jr., be revoked, for the reason that said guardians were not of the same religious faith or persuasion as the father of said minor. Said petition is in words and figures as follows: "Now comes Cosmos Dixon, of St. Joseph, Missouri, and Thomas Dixon, Ella Dixon, and Louise Dixon, of Junction City, Kansas, and state that they are brothers and sisters respectively, of the late Charles Dixon, who, at the time of his death on July 22, 1911, was and for several years prior thereto had been a resident and domiciled in Kansas City, Missouri, and that they are, and the deceased, Charles Dixon, at the time of his death and long prior thereto was of the Roman Catholic faith and persuasion, and that by virtue of these premises said petitioners are interested in the matters herein stated and prayed for. That Cornelius B. Baker and Susan M. Baker, husband and wife, were appointed by this court on the 1st day of August, 1911, guardians of the person of Charles Dixon, Junior, an infant eleven years of age, who is the only surviving child of the late Charles Dixon hereinbefore mentioned. That the mother of said infant, Charles Dixon, Junior, departed this life prior to the death of said Charles Dixon. That section 420 of the Revised Statutes of Missouri 1909, provides that in such cases minors shall not be committed to the guardianship of a person of a religious persuasion different from that of the child's parent who last survived. That said Charles Dixon, Junior, was baptized and reared in the Roman Catholic faith and persuasion continuously up to the date of the death of the said Charles Dixon, the parent who last survived. That Charles Dixon, deceased, was of the Roman Catholic faith and persuasion. That neither the above-mentioned Cornelius B. Baker nor Susan M. Baker is of the same religious...