Rushing v. Horner ( 1917 )

McO'ULLOCH, C. J.,

(dissenting). Appellants are the assailants in this controversy, involving the validity' of the judgment of the probate court directing the sale. Appellees hold under a deed executed by the guardian, pursuant to a sale made under the direction of the court, which deed is at least prima facie evidence of the validity of the sale. Kirby’s Digest, § 3799.

In the absence of proof, the presumption ought to be indulged that the probate court found the existence of facts necessary to confer jurisdiction. The burden is, or ought to be, placed on the attacking party to show that the court did not have jurisdiction.

The decision in the present case is, I think, a far-reaching extension of the rule announced in Tipton, Ex parte, 123 Ark. 389, which strips the probate court of the last vestige of presumption of regularity heretofore attending their judgments, when drawn in question collaterally.

Smith, J., concurs.