Smith v. Young

117 S.W. 628, 136 Mo. App. 65, 1909 Mo. App. LEXIS 10

• Court: Missouri Court of Appeals
• Decided: March 9, 1909
• Status: Published

Opinion

NORTONI, J.

(after stating the facts). — The jurisdiction of the probate court to appoint a guardian or curator for a minor is fixed by the domicile of the minor. [Lacey v. Williams, 27 Mo. 280; DeJarnet v. Harper, 45 Mo. App. 415.] And. as a general proposition, the domicile of the parent is the domicile of the minor. [Marheineke v. Grothaus, 72 Mo. 204; Garrison v. Lyle, 38 Mo. App. 558.] The domicile of the minor is a matter in pais which the probate court must find as a fact to support its jurisdiction in proceedings of this character. [Cox v. Boyce, 152 Mo. 576; Johnson v. Beasley, 65 Mo. 250.] It seems, however, that the domicile of the parent may not necessarily always be the domicile of the minor for the purpose of determining the jurisdiction of the probate court, as in cases 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. Or where the parents have wholly abandoned the child to the grandparents. In the case of Cox v. Boyce, 152 Mo. 576, it appears the mother of the minor was dead and the father had surrendered and committed the child to its grandfather in Lincoln county. In that case, both father and grandfather resided in the same county. After the child was committed to his care, the grandfather was duly appointed curator of its estate by the probate court of Lincoln county. The grandfather afterwards removed to Howell county. He was never discharged as guardian and curator by the probate court of Lincoln county. After having resided several years in Howell county, the grandfather applied to and was appointed by the probate court of Howell county as guardian of the child and curator of its estate, although the child’s father continued to reside in Lincoln county. In a collateral attack upon the judgment of the Howell county jmobate court, by which the grandfather was appointed curator, the Supreme Court expressed the opinion that in view of the fact that the child’s father had surrendered the minor to her grandfather, the latter stood in loco parentis toward her and therefore his residence in Howell county was the domicile of the child, and thus served to confer jurisdiction upon the probate court of that county to appoint a curator. Our statute (section 3478) declares the father, while living, and after his death or when there shall be no lawful father, then the mother, to be the natural guardian and curator of their child. This is merely declaratory of the rule which obtained at common law. [See 1 Blackstone’s Com., 435; 2 Kent’s Com., 220; Lamar v. Micou, 114 U. S. 218.] As a general proposition, the removal of the child from one county to another by its guardian does not operate to change the domicile of the child; and this is true even though both parents are dead and the guardian be the grandfather of the child. Such was the case of Marheineke v. Grothaus, 72 Mo. 204. Upon. a cursory reading, the doctrine of this case seems to conflict with the opinion expressed in Cox v. Boyce, 152 Mo. 576. By a more careful scrutiny, the cases may be distinguished by the fact that in Cox y. Boyce, it appeared the father had surrendered the child to the grandfather, and we conclude, abandoned it. The child’s mother being dead and the father having abandoned or surrendered it to the grandparent, the grandparent, of course, as next of kin, stood in loco parentis, and hence his removal of the child to Howell county was the removal of its domicile, for the reason that he, although its guardian, having assumed the position of parent, determined the domicile of the child. Now in Marheineke v. Grothaus, 72 Mo. 204, it appears the domicile of the child was fixed by the later domicile of its parents, who died in St. Louis. The grandfather, who was a resident of Franklin county, qualified as guardian and curator under an appointment of the probate court of St. Louis county. Having thus qualified, the grandfather removed the child, not as parent but as guardian, to his home in Franklin county. The guardian grandfather afterwards died and the probate court of Franklin county appointed Koehring in his stead, while the probate court of St. Louis county appointed William Kelso as his successor. A contest having arisen between these curators appointed by the different courts concerning .certain property 'of the child, the Supreme Court upheld the jurisdiction of the probate, court of St. Louis county upon the theory that the domicile of the minor was within the jurisdiction of that court at the time of the original appointment and the domicile of the ward could not be changed by the act of the guardian in removing her to another county prior to attaining the age of fourteen years, at which age the ward might choose for herself. The proposition of law to be deduced from the case is that the guardian may not change the domicile of a child under fourteen years of age by the mere fact of removing it to another county. On the other hand, the proposition of law to be deduced from Cox v. Boyce is to the effect that if the guardian who is the grandfather and next of kin, standing in loco parentis to the minor, removes the child from one county to another, it will operate to change the domicile of the child, even though he be its guardian as well as grandparent, identically; as in the case of a natural parent. The doctrine of this case is in accord with that which now quite generally obtains in the American courts to the effect that after the death of both parents, infants who take up their residence at the home of the grandparents and next of kin, in another State or county, will acquire such grandparent’s domicile. [See Lamar v. Micou, 114 U. S. 218; In re Benton, 92 IOAva 200; Schouler’s Domestic Relations (5 Ed.), see. 303; 15 Amer. and Eng. Ency. Law (2 Ed.), 35.]

Now it appears that the minor in the present instance was placed in the home of her grandfather in Pike county when only three days of age; and this, too, under an agreement on the part of the father that the grandparents should retain her ever after. It is true this agreement was not obligatory on the part of the father as a matter of law. It was revokable at will on his part. [In re Scarritt, 76 Mo. 565.] And there is no doubt had the father - died and the mother survived, the death of the father would have operated as a revocation of the promise and, ipso facto, transferred the domicile of the infant to that of the surviving mother. [DeJarnet v. Harper, 45 Mo. App. 415.] The mother of the infant having departed this. life prior to the arrangement, the death of the father certainly would not operate to revoke it so as to change the domicile of the child from that of the grandfather, who was next of kin. Our statute (section 3482) authorizes the surviving parent to appoint a guardian for the minor by his last will, and we apprehend that William A. Jackson might have changed the domicile of the child from the home of its grandparents in Pike county to his former home in Troy by directions to the testamentary guardian to that effect in the will. He did not see fit to do this, however. On the contrary, he expressed his wishes to the effect that the child should continue to reside with its grandparents, unless the testamentary guardian, James A. Jackson, directed otherwise. James A. Jackson appeared in the probate court and declined to accept the trust of guardianship, and no change was made. It appeared the grandparents were most excellent people and that it was conducive to the best interests of the child that it should remain in their custody. Now under the circumstances of this case, the father having died without revoking his promise as to the future of the child, and it residing at the time with the grandparents, next of kin, we believe that instantly upon the death of the father, the grandfather assumed the position of parent, and that his domicile became the domicile of the child. [Lamar v. Micou, 114 U. S. 218; In re Benton, 92 Iowa 202; Schouler’s Domestic Relations (5 Ed.), sec. 303; 15 Amer. and Eng. Ency. Law (2 Ed.), 35.]

Now, assuming that the minor, Etta Louise Jackson, was domiciled in Pike instead of Lincoln county, and that the Pike county probate court was possessed of jurisdiction to appoint a curator for her estate in the first instance, the important question for decision in the case is: can the judgment and order of the probate court of Lincoln county by which the defendant Young was appointed, be vacated and set aside at a subsequent term in this proceeding? By the refusal of instructions, the circuit court indicated this to be a collateral attack upon the judgment of the probate court of Lincoln county. We concur in that view. The probate courts of this State are no longer treated as inferior tribunals with limited jurisdiction; but on the contrary, they are regarded as courts exercising a general jurisdiction upon the matters committed to them by the statutes. Probate courts are possessed of original and exclusive jurisdiction with respect to the matter of guardians and curators of minors. In part, their right to proceed rests in pais and must be found and determined as a matter of fact by the court when proceeding to exercise its jurisdiction on a given subject. The legislative authority has conferred power upon the probate court of a county in which a minor is domiciled, to appoint a guardian for its person or a curator for its estate. The rule is that where the fact upon which the power of the court to act depends, is referred by the lawmakers to be determined by the court, a determination of that fact by such court is conclusive and cannot be questioned in other than a direct proceeding to that end. And this is true even though it found the fact erroneously. Such fact is res adjudicata. [Johnson v. Beasley, 65 Mo. 250; Hadley v. Bernero, 103 Mo. App. 549; Cos v. Boyce, 152 Mo. 576; Grignon’s Lessee v. Astor, 43 U. S. (2 How.) 319; Scofield v. Bohne, 169 Mo. 537, 24 Ency. Pl. and Pr., 709, 717, 718, 766.] It appears that several cases have been entertained in this State in form here presented. The question was not considered, however, in any of them, as to whether or not the attack was direct or collateral. In Lacey v. Williams, 27 Mo. 280, the probate court of Pike county had appointed a curator for the estate of three minors who resided in Cedar county. Their mother came into the probate court of Polk county and moved the court to vacate its order to that effect, for the reason the court was without jurisdiction. The judgment was vacated in accordance therewith. It does not appear whether this motion was filed at the term at which the order of appointment was made, or at a subsequent term. Of course a motion to vacate a judgment filed at the term at which the judgr ment was entered, is one form of a direct attack on the judgment, and is always proper. [15 Ency. Pl. and Pr., 236.] We must presume that Lacey v. Williams was a case of that character; that is, nothing appearing to the contrary in the,opinion, the presumption is that the motion was filed at the same term at which the appointment of the curator was made and it was therefore very properly sustained. This case has been referred to frequently as a direct attack upon a judgment. [Johnson v. Beasley, and Cox v. Boyce, supra.] However, the learned judge in Lacey v. Williams declared the judgment of the probate court void and said it was subject to collateral attack. From these remarks, it is to be presumed that there was something on the record of the probate court which showed that judgment to have been void. [Cox v. Boyce, 152 Mo. 576-582.] It may have been the record of the court in Polk county evinced that the minors resided in Cedar county. In such circumstances, of course, it appeared on the face of the record that the probate court of Polk county was without jurisdiction. Where the record shows on its face the court was not possessed of jurisdiction in the cause, the judgment is obviously void. In such cases, it may be assailed in a collateral proceeding or set aside at a future term by the same court. [See Pettus v. McClenahan, 52 Ala. 55; Kohn v. Haas, 65 Ala. 478; 17 Amer. and Eng. Ency. Law (2 Ed.), 825, 926; 15 Ency. Pl. and Pr., 237. However, where the judgment is fair on its face, as in this case, it may not be thus assailed at all in a collateral proceeding. [Cox v. Boyce, 152 Mo. 576; Hadley v. Bernero, 103 Mo. App. 549; Johnson v. Beasley, 65 Mo. 250; Van Fleet, Col. Attacks, sec. 3.] Nor in any manner at a subsequent term other than a direct proceeding to that end. [15 Ency. Pl. and Pr., 216.] In De Jarnet v. Harper, 45 Mo. App. 415, the probate court of Johnson county appointed a guardian for a minor whose domicile was in Bates county. The probate court of Bates county, in which the minor’s domicile was as a matter of law, appointed another person guardian. The Bates county guardian instituted a proceeding in the probate court of Johnson county at a subsequent term, like the proceeding here, seeking to set aside the judgment and order of the probate court of Johnson county appointing the guardian. On appeal to the circuit court of Johnson county, the judgment of the Johnson county probate court was set aside as prayed, and upon an appeal to the Kansas City Court of Appeals, that judgment was affirmed. The question as to whether or not the proceeding was a direct or collateral attack upon the judgment of the probate court of Johnson county was not considered. See, also, the case of Garrison v. Lyle, 38 Mo. App. 558, by the same court to the same effect. These cases may be pointed to as precedents for this proceeding. We are persuaded, however, that had the question of direct or collateral attack been brought forward, the Court of Appeals would have declared the proceeding in each of those cases a collateral attack and given judgment accordingly. It is to be observed that in the opinion in the De Jarnet case, Judge Gill speaks of the judgment of the Johnson county probate court as void and treats it accordingly. The court was no doubt misled by the remarks in Lacey v. Williams as to the judgment in that case being void and therefore subject to collateral attack. Now it is highly important that proceedings had in the probate courts should be protected by the law, as titles and vast interests which frequently flow therefrom may be overthrown and destroyed if such judgments are not accorded the usual sanctity which obtains with respect to the judgments of courts of superior jurisdiction. Suppose for instance, that this minor had owned valuable real estate in Lincoln county, and that it had been sold under an order of the probate court, as authorized by statute. In such circumstances, should parties be permitted to come into that court years after and by introducing new proof on a question of fact, overthrow the jurisdiction, vacate the prior proceedings, and destroy a title which emanates from a judgment fair on its face? We are inclined to the contrary. The courts should assume and maintain a firm position in such cases, and countenance no proceeding which would tend to establish a precedent for such an unwonted invasion of the rights of property. Any proceeding authorized by law to vacate a judgment of a court of competent jurisdiction, is a direct attack thereon. [Van Fleet, Col. Attacks, sec. 2.] While a collateral attack is an attempt to avoid, defeat, vacate or deny the force and effect of a judgment in some manner not authorized by law. [Van Fleet, Col. Attacks, sec. 3.] It is urged that as no appeal was allowable from the judgment of the probate court of Lincoln county appointing the defendant Young as curator and that as this mode of direct attack was thereby precluded, the court should not treat the present proceeding as a collateral attack. It is said the question ought not be regarded as res ad judicata, as no appeal from the order of appointment could be had. To the proposition that an appeal is not allowable in such cases, Looney v. Browning, 112 Mo. App. 195, is cited. The case cited is certainly a sound exposition of the law. However that may be, it does not preclude the right of appeal from the refusal of the probate court to set aside its judgment. The statutes on appeal, touching the matter of guardians and curators, are in pari materia with like statutes touching appeals from probate courts under the administration law. Although an appeal will not lie from the order of a probate court appointing an administrator, it has been several times decided that an appeal will lie from the refusal of that court to revoke such appointment. [See Donaldson v. Lewis, 7 Mo. App. 403; Owens v. Link, 48 Mo. App. 534.] By analogy of reasoning, it is entirely clear that an appeal is allowable from a judgment of a probate court refusing to vacate the appointment of a curator. This opinion was expressed by this court heretofore. [See Looney v. Browning, 112 Mo. App. 195, 199.] Had the proper parties moved the probate court of Lincoln county to vacate its order appointing defendant Young during the term at which the appointment wras made, and their motion been refused, an appeal would lie from that judgment. Indeed, the very case we are now considering is one where the appeal is prosecuted from a refusal of the probate court to set aside an order appointing a curator. The important fact, however, which precludes this proceeding from being a direct attack on that judgment is that it was filed at a subsequent term of the court instead of at the term at which the judgment was given. However, the judgment of a court of general jurisdiction is conclusive on all matters within the adjudication unless vacated by a competent proceeding. An appeal, of course, when authorized, is competent as a direct attack on the judgment. If no appeal is authorized then it is presumed that the lawmakers intended none should be had, and . that the judgment should remain conclusive unless vacated by a direct attack in another competent form of proceeding. [Grignon’s Lessee v. Astor, 43 U. S. (2 How.) 319, 340.]

Besides an appeal prosecuted in due course and the several motions authorized by law and practice during the term, the only modes of direct attack at a subsequent term on a prior judgment, for which authority may be found in our books in any manner resembling the proceeding in this instance, are writs of error coram nobis, the common law audita querela, a motion to vacate for fraud in the act of procuring the judgment, and the bill to review on equitable grounds. The facts in judgment do not bring the matter within the scope of any of these remedies. The writ coram nobis will lie only in cases where the court has proceeded upon the assumption that a fact existed which was material to its right to proceed when the fact did not exist at all. [See Cross v. Gould, 131 Mo. App. 585.] No such case is presented here, because instead of it being a proceeding where the court assumed the fact conferring jurisdiction existed, the matter of the minor’s domicile was one in pais which it must find from extrinsic facts in evidence. Therefore, instead of it being a case review7able by coram, nobis at a subsequent term of the court in'wdiich the record lies, it is a case where the court, in the exercise of its jurisdiction, pronounced an erroneous conclusion of law on the facts and is reviewable only as such. [Grignon’s Lessee v. Astor, 43 U. S. (2 How.) 319, 340; Hadley v. Bernero, 103 Mo. App. 549, 557, 558.] Now the common law7 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. [Bouvier’s Law Dictionary; Fisher v. Johnson, 74 Mo. App. 64.] It is obvious the facts in judgment do not present a. case wdthin the scope of that ancient writ. There is no suggestion that the judgment was concocted or procured in fraud, and therefore the modern motion authorized by law to vacate such judgment at a subsequent term, does not obtain. [Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585.] Aside from the question as to w7hether or not the probate court is possessed of sufficient equity jurisdiction to entertain a bill in equity to review and vacate a judgment, it is sufficient to say that none of the grounds conferring equity jurisdiction, such a fraud, accident, mistake or surprise, are present or relied upon here.

We, therefore, conclude that this proceeding, instituted at a subsequent term of- the probate court,, seeking to vacate and set aside its prior judgment, is not authorized by law and is therefore a collateral, as distinguished from á direct, attack thereon. Entertaining this view7, the judgment will be affirmed. It is so ordered.

Reynolds, P. J., and Goode, J., concur.