Grier v. McLendon , 7 Ga. 362 ( 1849 )

By the Court. —

Warner, J.

delivering the opinion.

[1.] The, only ground of error assigned to the judgment of the Court below is, the rejection of the record of the Court of Ordinary of Troup County, offered in evidence, to prove the appointment of Jesse L. Laws, as guardian of Susan McLendon, of the State of Alabama. The record of the Court of Ordinary, offered in evidence, unfortunately a has not been sent up as a part of the transcript, or been incorporated into the bill of exceptions. We must necessarily be governed by the certificate of the presiding Judge, for the facts apparent on the face of that record, so offered in evidence. The bill of exceptions states, that the defendant offered in evidence, the records of the Court of Ordinary of Troup County, to prove the appointment of Jesse L. Laws, as guardian of Susan McLendon, of the State of Alabama, which was objected to by the plaintiff’s counsel, on the ground that the said Susan Mc-Lendon, the minor, had been proved to have been living in the State of Alabama at the time of the appointment of said guardian, and that the Court of Ordinary of Troup County, Georgia, had no power to appoint a guardian for her; which objection was sustained by the Court, and the defendant excepted. The Courts of Ordinary in this State, are Courts of limited jurisdiction.

[2.] In order to have given the Court of Ordinary of Troup County jurisdiction to appoint a guardian for Susan McLendon, she must either have been within the limits of the County, at the time of the appointment, or had property within the limits of the County. If she resided in the State of Alabama, at the time of. the appointment of the guardian for her by the Court of Ordinary of Troup, and had no property situate within the limits of the County, then the Court had no jurisdiction either to appoint a guardian for her person or for. her property. Although she may have resided in Alabama at the time of the appointment of the guardian, yet, if she had property in the County of Troup, the Court of Ordinary of that County had jurisdiction to appoint a guardian to manage and control such property. We mean to say, that in order to give the Court of Ordinary of Troup County power and authority to appoint a guardian for a ward, that Court must either have the person of the ward, or the property of the wá¡rd, within its jurisdiction, at the time of the appointment. So far as we can discover from the bill of exceptions, it did not affirmatively appear on the face of the record offered in evidence, that the Court of Ordinary of Troup had jurisdiction of either the person or property of the ward, at the time of the appointment of the guardian ; but so far as we are informed in relation to that matter, the ward resided in the State of Alabama at the time the appointment was made by the Court, and the record is entirely silent as to the ward having any property in the County at that time. The record offered in evidence being the judgment of a Court of limited jurisdiction, the facts necessary to give the Court jurisdiction, should affirmatively appear on the face of the proceedings. Powers vs. The People, 4 John. Rep. 291. Walker vs. Turner, 9 Wheat. Rep. 541. Trevor vs. Wall, 1 Term Rep. 151.

In Walker vs. Turner, the Court held, that where the jurisdiction of a Magistrate was special, and limited by Statute, it was essential to the validity of his judgment, and the proceedings under it, when offered as evidence in another Court, that the record so offered should show that the Magistrate acted upon a case which the law submitted to his jurisdiction. The rule as to jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court of general jurisdiction, but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court of limited jurisdiction, but that which is so expressly alleged. Peacock vs. Bell & Kendall, 1 Saunders' Rep. 74.

[3.] If it had appeared on the face of the record from the Court of Ordinary of Troup, offered in evidence, that Jesse L. Laws was appointed the guardian of Susan McLendon, of that County, or if it had appeared that Susan McLendon, the ward, resided in the State of Alabama, but had property in the County of Troup, and that Laws was appointed the guardian of such property, then the judgment of the Court of Ordinary of Troup would have been conclusive of that fact, when offered in any other Court, and could not, in such other Court, be attacked, collaterally, when the jurisdiction of the Court appeared on the face of the proceedings. In order to set aside such a judgment, some direct proceeding must be had for that purpose in the Court in which the judgment was rendered. Where, however, the facts necessary to give the Court of Ordinary of Troup County jurisdiction, either of the person of tbs' ward, or of her property, did not appear on the face of the proceedings offered in evidence, according to the record before us, the same was properly rejected by the Court below.

In Thompson vs. Tomlie, (2 Peters’ Rep. 157,) the Court held it to be a well settled rule of law in such cases, that when the proceedings are collaterally drawn in question, and it appears on the face of them that the subject matter was within the jurisdiction of the Court, they are voidable only — the errors and irregularities of any suit, are to be corrected by some direct proceeding, either before the same Court to set them aside, or in an appellate Court. It was also held, that if there is a total want of jurisdiction, the proceedings are void and a mere nullity, and may be rejected when collaterally drawn in question.

Let the judgment of the Court below be affirmed.