Stewart v. Herten
| Citation | 249 N.W. 552,125 Neb. 210 |
| Decision Date | 12 July 1933 |
| Docket Number | 28539 |
| Parties | AGNES STEWART, GUARDIAN, APPELLANT, v. FRANK HERTEN, GUARDIAN, ET AL., APPELLEES |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Thurston county: MARK J. RYAN JUDGE. Reversed and dismissed.
Judgment of the district court reversed and action dismissed.
Syllabus by the Court.
1. " One may, as amicus curiæ, suggest the action of the court in any matter in which the court may proceed of its own motion." 2 C. J. 1323.
2. " Courts are bound to take notice of the limits of their authority, and accordingly a court may of its own motion even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings." 15 C. J. 852.
3. County courts of this state are courts of record, having exclusive original jurisdiction of minors, residents of their respective counties, the appointment and removal of guardians of such, the settlement of their accounts, and the giving of directions relative to the management, investment, and disposition of the property of their minor wards.
4. Where exclusive jurisdiction of a subject-matter is conferred on county courts, and where relief sought in an action pertaining thereto but instituted in a district court is such that the county court under these powers so conferred is authorized to grant it, the district court will be deemed to have no original jurisdiction in the premises.
5. The enactment of the Uniform Declaratory Judgments Act (Comp. St. 1929, §§ 20-21,140 to 20-21,155) will not be construed as supplementary to or supplanting existing statutes, nor in any manner modifying, impairing, or restricting the powers otherwise vested in county courts.
6. Proceedings for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided by law for the character of action in hand.
7. Under the facts presented in the instant case, the powers vested in the county court are ample to afford complete and prompt relief, and its jurisdiction thereof being in effect made original and exclusive by law, the subject-matter of this action is necessarily excluded from the original jurisdiction of the district court.
Appeal from District Court, Thurston County; Ryan, Judge.
Action by Agnes Stewart, joint guardian of the estate of Robert B. Herten and another, minors, against Frank Herten, a joint guardian, and others. From the judgment rendered, the plaintiff appeals.
Reversed, and the action dismissed.
Anson H. Bigelow and Robert G. Fuhrman, for appellant.
Alfred D. Raun and Stason & Knoepfler, contra.
Crossman, Munger & Barton, Kennedy, Holland & De Lacy and Ralph E. Svoboda, amici curiae.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.
Practically as the sole matter of agreement between the parties to this litigation they unite in the conclusion that the proceedings here presented for review were had under the provisions of the "Uniform Declaratory Judgments Act." Comp. St. 1929, secs. 20-21,140 to 20-21,155.
It appears that Charles F. Herten died on January 29, 1931, a resident of Thurston county, Nebraska, leaving a last will. This instrument was duly admitted to probate in the county of his residence. The executors therein named thereupon qualified and entered upon the discharge of their duties, though the administration of said estate has not yet been fully completed. In this will the testator designated as guardians of his minor children, Robert B. Herten, a son, and Marilyn J. Herten, a daughter, the deceased's brother, Frank Herten, who will hereinafter be referred to as defendant, and his sister, Agnes Stewart, who will be hereafter referred to as plaintiff. Both qualified. At the date of the entry of the final order herein appealed from, there was in the possession of the executors, ready to be delivered to them as guardians and available for investment, the sum of $ 45,602.03.
It also appears that, after qualification as guardians, proceedings were commenced in the county court for Thurston county relating to the care and investment of the funds of these wards. Both plaintiff and defendant were participating therein in a manner which obviously evidences their fundamental disagreements and antagonisms.
While these proceedings were still pending, on December 5, 1931, Agnes Stewart, as joint guardian, filed in the district court for Thurston county a petition in equity. This, in effect, was an original independent action ostensibly invoking the provisions of the uniform declaratory judgments act. The relief sought by her was that a separate unified guardianship of the minor children be authorized and directed; that the guardian, to be appointed for this purpose, should be a corporation as described in her petition; that the investment of the funds of the wards be limited to certain specified forms of property set out by her; and also prayed for general relief. Issues were formed by the amended answer and cross-petition of Frank Herten, as guardian, and the reply of plaintiff.
So far as the purpose of this case is concerned, it may be said that the district court, upon hearing duly had, after making full findings of fact, entered its judgment removing the joint guardians of the minors from their offices, and appointing as their successor a trustee who, upon giving a prescribed bond, was directed to take over the entire estate of the wards, manage it, and invest the cash portion thereof as directed in this decree.
Plaintiff thereupon appealed.
The controlling question presented by the record is the question of jurisdiction of the district court to make the final order appealed from. This question is not raised by the parties to this action. However, it is presented in a brief by amici curiae. This brief was filed by leave of court.
It would seem obvious that "One may, as amicus curiae, suggest the action of the court in any matter in which the court may proceed of its own motion." 2 C. J. 1323.
"Courts are bound to take notice of the limits of their authority, and accordingly a court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings." 15 C. J. 852.
See, also, Radil v. Sawyer, 85 Neb. 235, 122 N.W. 980; Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192; In re Estate of Hansen, 117 Neb. 551, 221 N.W. 694; In re Estate of Frerichs, 120 Neb. 462, 233 N.W. 456; Taylor v. Haverford Township, 299 Pa. 402, 149 A. 639.
Prior to the enactment of our uniform declaratory judgments act in 1929, it would seem beyond cavil that our county courts were vested with exclusive original jurisdiction over all the questions involved in and determined by the decree from which plaintiff has appealed. In this connection the following provisions of our Constitution, and laws passed pursuant thereto, pertaining to the subject of guardian and ward, are pertinent.
"County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, * * * appointment of guardians, and settlement of their accounts." Const. art. V, sec. 16.
By statute it was provided: "The county court shall have exclusive jurisdiction of * * * the guardianship of minors." Comp. St. 1929, sec. 27-503.
So, also: "The county courts in their respective counties, on the application of a guardian, or of any person interested in the estate of any ward, after such notice to all persons interested therein as the court shall direct, may authorize or require the guardian to sell and transfer any stock in public funds, or in any bank or corporation, or any other personal estate or effects held by him as guardian, and to invest the proceeds of such sale, and also any other moneys in his hands in real estate, or in any other manner that shall be most for the interest of all concerned therein; and the court may make such further orders and give such directions as the case may require for managing, investing and disposing of the estate and effects in the hands of the guardians." Comp. St. 1929, sec. 38-506.
In the construction of the foregoing provisions, this court has long been committed to the view that the appointment and removal of guardians, and the control and direction of the investment of the funds of minors by their guardians, are within the original jurisdiction of the county court. In re Estate of O'Brien, 80 Neb. 125, 113 N.W. 1001; Seward v. Danaher, 105 Neb. 787; In re Connor, 93 Neb. 118, 139 N.W. 834; Crooker v. Smith, 47 Neb. 102, 66 N.W. 19. See, also, 28 C. J. 1139; Scammon v. Pearson, 79 N.H. 213, 107 A. 605; Barrett v. Cady, 78 N.H. 60, 96 A. 325.
So also, where exclusive original jurisdiction of a...
To continue reading
Request your trial