Turrentine v. Daly , 82 Ala. 205 ( 1886 )

STONE, C. J.

— The argument of counsel seeks to hinge this case on a legal principle, sound, yet somewhat artificial in its nature, which it .is exceedingly difficult to formulate in a general rule applicable to all cases. The principle is this : When the exercise of jurisdiction, or official authority, depends on the existence of some preliminary, or concomitant fact or facts, and no machinery or formula is provided for the ascertainment of such fact or facts, then the exercise of such judicial functions, or performance of such official act, raises the indisputable presumption, that the existence of such preliminary or concomitant fact or facts had been ascertained, before the official act was performed. And this principle is sometimes applied, when a judgment of a court of competent jurisdiction, otherwise regular, can be upheld only on the theory, that the court, before rendering the judgment, ascertained the existence of some fact, assumed or implied in the judgment rendered, without which the court would have had no authority to act. — Hamner v. Mason, 24 Ala. 480; Gunn v. Howell, 27 Ala. 663; Wyatt v. Rambo, 29 Ala. 510; Hunt v. Ellison, 32 Ala. 173; Lee v. Lee, 67 Ala. 406; Landford v. Dunklin, 71 Ala. 594; May v. Marks, 74 Ala. 249; Glass v. Glass, 76 Ala. 368; Cox v. Johnson, 80 Ala. 22.

We do not understand the principle stated above to be applicable to this case. Turrentine had resigned his guardianship of Miss Fogg, before he filed his account-current for settlement. This gave the court jurisdiction of the subject matter, — Lee v. Lee, 67 Ala. 406. The inquiry, whether the ward had attained to majority or not, did not pertain to the court’s right to hear and determine the cause. That right accrued when the guardian’s resignation was received and filed. What was. wanted was jurisdiction of the person. That inquiry was material only in determining in what manner the ward should be represented on the settlement. If she was adult, she should have appeared in person, or by counsel, one or both. If she was a minor, a guardian’ ad litem should have been appointed for her, and he should have accepted and acted. An indispensable element of the conclusiveness of a final settlement of a guardian, made during infancy of the ward, is the representation of the ward by a guardian ad litem of the appointment of the court. A settlement without the appointment of such guardian, and without affording him the opportunity of appearing and contesting the accounts of the guardian on behalf of the ward, is ex parte, and, at the election of the ward, may be disregarded. It is not evidence against him, and is not a bar to any proceeding he may subsequently commence for a settlement of the guardianship. — Hutton v. Williams, 60 Ala. 133, and authorities cited; Freem. on Judg. § 98; Werborn v. Austin, at the present term.

We have attempted to show, and think we have shown, that this case is not governed by the principle invoked. We hold that the recital in the decree, “ said ward being now of full age,” is not the conclusive ascertainment of a jurisdictional fact, but that the same may be controverted. Cox v. Johnson, 80 Ala. 22.

The original bill is not before us, and we can not consider the first, second, and third grounds of demurrer. There is nothing in the other grounds.

In one feature this case is very peculiar. The guardian resigned in 1876, and immediately filed his account-current for final settlement. An order was then made, setting a day for settlement, and ordering publication to be made. We suppose publication was made soon afterwards. It is not denied that the ward was a minor at that time. Eor some reason not explained, the settlement was not made until 1880, about four and a half years after the day set for the settlement. It is not shown that the ward appeared, or was represented, either at the settlement, or at any time while it was pending. It is shown that she was non-resident during the whole term of the guardianship. The notice was given only by statutory publication, and while she was a minor. As we have seen, no guardian ad litem was ever appointed for her, and there is nothing in the record showing she had any knowledge of the pending settlement. The peculiarity we refer to is this: The account was-filed, and publication ordered, for settlement with her as a minor, but no steps were taken to have her represented as a minor. Four and a half years afterwards, without further notice, and without her presence by self or counsel, the settlement was made with her on the recited fact that she had become of lawful age. We mention these facts, not for the purpose of raising any inquiry as to the good faith of the guardian. The trust estate was small, and our attention has not been directed to anything in the record which indicates bad faith, or inefficient administration. Our sole purpose in introducing this subject is, that we may disclaim any and all intention, in what is decided above, of appi’oving or disapproving the course pursued, changing the settlement from one with a minor to a settlement with an adult, without the presence or representation of the ward, and without notice of the changed purpose. Should a case similar to this ever again come before us, we wish to be understood as entirely uncommitted on this question.

The decree of the chancellor is affirmed.