Hines v. Mullins ex rel. Smith

By the Court.

Benning, J.

delivering the opinion.

[1.] A father is bound to support and educate his children if he is able to do so, and that, whether they have property of their own or not. This proposition is not disputed.

The first charge, therefore, cannot be wrong, for it asserts no more than this proposition.

As to the second charge.

Hines, the father, was the person first appointed guardian of the children, by the Inferior Court of Harris county. He accepted the appointment, received the property, and otherwise acted as guardian, until he was removed from the guardianship, for misconduct, by that Court.

[2.] Now, would it have lain in his mouth to say, that at the time of his appointment one of the children “ resided,” not in Harris, but in Meriwether; and, that, consequently, the appointment was void? Would not the Court in Harris, have had the right to call him to account, be the matter as to the residence of this child, as it might? We think so. It is tobe presumed, that he made every thing appear to the Court, necessary to give it the jurisdiction to appoint him; and allowing him afterwards to protect himself by a plea, that the Court did not have this jurisdiction, would be allowing him to take advantage of his own wrong.

If so, then, the act of appointing him is to be taken as the act of a Court having jurisdiction, and therefore is to be held as valid.

But if the Court had jurisdiction to appoint him, it had jurisdiction to remove him.

Not only so; it had jurisdiction to make any such order as it should “ think fit;” and, therefore, it had jurisdiction to appoint a successor. “ And when such Court shall know or be informed, that such guardian, executors or administrator?, shall waste, or in any manner, mismanage the estate of such orphan or deceased person; or does not take due care of the education and maintenance of such orphan, according to his her or their circumstances; or where such guardian, executor or administrator, or his, her or their securities, are likely to become insolvent; such Court may make such order for the better managing and securing such estate, and educating and maintaining such orphan, as they shall think fit.” Cobb Dig. 312

The result is, that all of the action of the Court in Harris; the appointment of Hines; his removal; and the appointment of Smith as his successor; was valid, at least, so far as he was concerned, even although, one of the children, was all the time, residing in Meriwether.

This being so, there was no harm done by this charge even if it was wrong; and if a wrong charge does no harm, it is not a ground to this Court for granting a new trial unless a new trial was moved for in the Court below.

In this case, a new trial was not moved for, in the Court below.

Judgment affirmed.