Cowser v. State ex rel. Burt

27 Ark. 444

• Court: Supreme Court of Arkansas
• Decided: June 15, 1872
• Status: Published

Opinion

Gregg, J.

Burt, as the administrator de bonis non, of the estate of John O’Guinn, brought suit against William R. Cowser, former administrator of said estate, and the sureties upon his official bond, alleging that they executed bond in the usual form; that said William R. took into possession the effects of the estate; that in 1861 he removed from the State; that the Court of Probate required him- to make settlement; that he failed to do so, and that in August, 1861, said court ordered his letters revoked, and adjusted his account and found $3063 in his hands, and thereupon appointed said Burt such administrator de bonis non, and that said effects had not been turned over according to the order of the Probate Court, etc.

William R. -Cowser was not served with process. James Cowser and Hicks, the securities, had notice; they appeared and demurred to the declaration; their demurrer was overruled, and, it seems, final judgment rendered against all three.

The demurrer should have been sustained.

The 25th section of the bill of rights, of our present Constitution, declares that, “The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock on the 4th day of March, 1861, was, and is, null and void. All the actions of the State of Arkansas, under authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial or military, was, and is hereby declared null and void,” etc.

The acts alleged to have been clone by said Probate Court, were judicial acts, under authority of the Convention of 1861, and consequently void, as enacted and declared by the present Constitution. The courts aré bound by the Constitution, in force, and the acts of the Legislature consistent therewith, and they cannot now give the acts of that court the force and effect of judgments. See Penn vs. Tollison, 26 Ark. 545; Thompson vs. Mankin, 26 Ark. 586; and Knox vs. Vinsant, 27 Ark.

The judgment is reversed, and the cause-remanded for fur.ther proceedings.