Campbell v. Scott ( 1900 )

Townsend, J.

Indian laws. Courts will not take judicial notice of. No action lies against guardian until settlement of guardianship. Guardian and ward. Misjoinder. Married woman may not be guardian of estate. The appellant filed six specifications of error, but from our view of the case the first is the only one necessary to consider. It is as follows: “(1) The court erred in overruling defendant in error’s demurrer to the complaint of plaintiff in error, which ruling was duly excepted to by the defendant.” Neither the transcript of the record nor the bill of exceptions shows what the' provisions of the Cherokee statutes are in regard to the duties and obligations of guardians, and this court cannot take judicial notice of those statutes. In Wilson vs Owens, 30 C. C. A. 257, 86 Fed. 573, 574, the circuit court of appeals says: “Any attempt, therefore, to take judicial notice of the local laws of the various tribes in that territory would be attended with doubt and difficulty, and would lead to error. We think that it is wiser to place such laws on the footing of local usages and customs, and to require them to be pleaded and proven by litigants who rely upon them for protection, if they are at variance with the code of municipal law which has been extended over the Indian Territory for the guidanee of the United States courts sitting therein. We are of opinion that this view, if acted upon, will, in the great majority of cases, lead to a more correct and just administration of the law. ’ ’ By section 28 of the Curtis bill the Indian courts are abolished, and all causes then pending in any such court shall be transferred to the United States court in said territory by filing with the clerk of the court the original papers in the suit. Now, the complaint in the suit at bar alleges that the defendant is the guardian of the plaintiff, aDd also of Lucy Reed. It nowhere appears that the defendant, J. E. Campbell, has ever been removed, or that any attempt has ever been made to remove him. The plaintiff does not show, either, that a final settlement as guardian has ever been demanded of appellant. Neither does it show that he has ever refused bo comply with any order relative to making a settlement of the accounts of said estate that may have been issued by the proper court. “Until there is a final settlement of a guardian’s account in the probate court, and an order of the court for him to pay over some balance found due his wards on such settlement, there is no legal cause of action.” Vance vs Beattie, 35 Ark. 93; Sebastian vs Bryan, 21 Ark. 447; Norton vs Miller, 25 Ark. 115. Under the authority laid down in Norton vs Miller, 25 Ark. 108, this action could not be maintained for the reason that the remedy of the heirs is several, and not joint; one of them being of age and the other yet a minor. The plaintiff should bring the record of the appointment of J. E. Campbell into the United States court, and demand a settlement of these guardianship matters, or his removal. Under section 3486, Mansf. Dig. (section 2382, Ind. T. Ann. St. 1899), which is as follows: “No married woman shall be a guardian or curator of the estate of a minor; and if any woman, after the appointment, marry, the marriage shall operate as a revocation of her appointment; but a married woman may be guardhn of the person of a minor, and marriage after appointment shall not operate as a revocation thereof,” — the plaintiff in this case, being a married woman, could not be the guardian of the estate of Lucy Reed. Hence we are of the opinion that this suit is not the proper proceeding for these wards to pursue.

Demurrer not entitled to second Rearing by different judge. The demurrer was overruled by Judge Springer, and thereupon defendant filed answer. Upon the case being called for trial, defendant withdraw his answer, and asked leave to file a demurrer to the complaint. Judge Thomas, then presiding, held that, since Judge Springer had passed upon the demurrer, he could not sit in judgment upon the rulings of a brother nisi prius judge. The defendant having refused to plead further there was nothing left for Judge Thomas to do but to enter the default judgment as he did. The error in the case was in Judge Springer overruling the demurrer to the complaint, and for this error the judgment is set aside, and the case reversed, with directions to the court below to dismiss the case. Reversed and dismissed.

Clayton, C. J., and Gill, J., concur.