Micco v. Huser

This is an original action seeking a writ of prohibition, commanding E. Huser, county judge of Okfuskee county, Tom Hazlewood, special county judge, R.L. Davis and J.H. Doggett, respondents, to desist and refrain from further proceedings in a case in the Okfuskee county court entitled "In the matter of the Guardianship of Peter Micco, an Incompetent," and to terminate said guardianship proceedings.

The case presents a conflict in jurisdiction between the county court of Tulsa county and the county court of Okfuskee county, as to the appointment of a guardian for Peter Micco, an Indian incompetent. It appears that on March 23, 1938, George Deer, as a friend of Peter Micco, filed his petition in the county court of Okfuskee county, asking for the appointment of a guardian over the person and estate of said Peter Micco. The petition was regular in form and was duly verified. The petition prayed for the appointment of R.L. Davis as such guardian. E. Huser was and is the county judge of Okfuskee county, and on the same day the petition was filed, entered an order for hearing thereon for March 31, 1938, and directing that notice thereof be given to Peter Micco, at least five days before said hearing. Notice was issued and served upon Peter Micco in person on the same day.

The hearing was continued from time to time until May 19, 1938. In the meantime, upon request of Sam Clammer, appearing as attorney for Peter Micco, E. Huser had certified his disqualification as county judge, and Tom Hazlewood was elected as special county judge.

In the meantime, on the 12th day of May, 1938, Hettie Micco, wife of said Peter Micco, joined by Joe Brown, probate attorney, and as a friend of Peter Micco, filed in the county court of Tulsa county a petition for the appointment of a guardian for the said Peter Micco, and on May 18, 1938, when said petition coming on for hearing in said court in Tulsa county, an order was made and entered appointing Hettie Micco guardian of the person and estate of said Peter Micco. She qualified as such guardian that day. On May 19, 1938, appearing specially, she filed a motion in the case in Okfuskee county to dismiss proceedings therein for appointment of a guardian, setting up the proceedings theretofore had in the county court of Tulsa county wherein Hettie Micco had been appointed by the county court of Tulsa county.

At the same time Dennie H. Petty, probate attorney of district No. 2, which includes Okfuskee county, appeared and orally objected to further proceedings in Okfuskee county. The motion to dismiss and objections of the probate attorney were denied and hearing was had resulting in an order appointing R.L. Davis and J.H. Doggett as guardians of the person and estate of said Peter Micco.

Petty, probate attorney, gave notice of appeal to the district court. Whether the appeal has been perfected does not appear.

Thereupon Hettie Micco, as guardian of said Peter Micco, filed herein the petition for writ of prohibition. Alternative writ was issued, and respondents have filed their response and a supplemental response. In the supplemental response, respondents request that Sam Clammer, J.A. Brown, United States Probate Attorney, and Jerome Fischer, judge of the county court of Tulsa county, be made parties to this action, to the end that they may be prohibited from acting further in the matter of the guardianship in Tulsa county.

By the response it is made to appear that on the 18th day of May, 1938, and before hearing in the Tulsa county case, George Deer asked and obtained leave to file "amicus curiae" application to dismiss the proceedings in Tulsa county for want of jurisdiction. Therein he set up substantially all the proceedings theretofore had in Okfuskee county; it was also alleged:

"* * * That after the filing of the said petition and the issuance and service of said notice hereinabove mentioned, it is the opinion of your petitioner that Peter Micco was induced to attempt to change his residence temporarily by designing persons, in an attempt to defeat the jurisdiction of the county court of Okfuskee county, Okla., and that your petitioner verily believes that said sojourn in Tulsa county, Okla., is temporary and has been brought about in an attempt to defeat the jurisdiction of the county court of Okfuskee county, said Okfuskee county being the actual residence of the alleged incompetent and the county in which his property is located and situated. * * *

"Your petitioner further states that Okfuskee county, Okla., is the actual residence of the alleged incompetent, and that the county court of Okfuskee county, Okla., took jurisdiction of this subject matter on the 23rd day of March, 1938, and that said matter has been pending in said court of Okfuskee county, Okla., since said time, and that Tulsa county, Okla., is not the residence of said alleged incompetent, and that this court does not have jurisdiction of the person and estate of the said alleged incompetent, for the reason that the jurisdiction of the county court of Okfuskee county. Okla., had attached before the filing of the petition herein and for the further reason that Tulsa county, Okla., is not the actual residence of the alleged incompetent."

Thus purporting to act "as friend of the court" rather than in his own behalf, he raised the question of the county of the actual residence of said Peter Micco at the time of said hearing, contending that his residence was in Okfuskee county at that time.

It is conceded, of course, that guardians appointed in both counties cannot administer the estate at the same time.

It appears to be conceded that Peter Micco was an actual resident of Okfuskee county at the time petition was filed and the notice served in that county, and that he moved to Tulsa county on or about the 4th day of April, 1938. It is not conceded, however, that he has been an actual resident in good faith of that county. But the county court of Tulsa county necessarily found that he was a resident of Tulsa county. Although appeal was perfected to the district court of Tulsa county, we must treat said finding and judgment as final and binding until the same has been reversed or modified on appeal.

Petitioner contends that the rule in such matters is that where the county court of one county has found as a fact and then judicially determined the jurisdictional facts necessary to proceedings in the appointment of a guardian, and has by order appointed a guardian, the jurisdiction there acquired is exclusive, and that such order is a bar to guardianship proceedings in any other county of this state.

It was so held in Powers v. Brown, 122 Okla. 40, 252 P. 27. But in that case the proceedings were first commenced in Latimer county, and the first order appointing was made in that county, and its order was upheld as against a subsequent order appointing a guardian in another county on proceedings begun after the commencement of proceedings in Latimer county. The decision, however, is not based alone upon priority of commencement of proceedings. In the opinion it is said:

"The Latimer county court having first proceeded to final judgment, that determination is res judicata as to the jurisdictional facts necessary to proceedings in the appointment of a guardian in Pittsburg county. The jurisdiction acquired in Latimer county is exclusive and a bar to like guardianship proceeding in all other counties of the state." Citing Sewell v. Christian, 114 Okla. 177, 245 P. 632.

The latter case does not involve priority in commencement of proceedings, since proceedings were commenced in the two counties on the same day. In such circumstances the court quotes with approval Freeman on Judgments, vol. 2, sec. 719, where it is said:

"Where two actions involving the same issue or issues, between the same parties or their privies, are pending at the same time, so that a final judgment in one would be res judicata or a bar in the other, when the judgment in one becomes final it may be urged in the other by appropriate proceedings, regardless of which action was begun first. It is the first final judgment, although it may be in the second suit, that renders the matter res judicata in the other suit."

Again, in Jackson, Gd'n, v. Haney, 166 Okla. 13, 25 P.2d 771, attention is called to Freeman on Judgments, supra, and Sewell v. Christison is cited with approval, and the fourth paragraph of the syllabus holds:

"Where two actions involving the same issue, or issues, between the same parties or their privies, are pending at the same time, so that a final judgment in one would be res judicata or a bar in the other, when the judgment in one becomes final it may be urged in the other by appropriate proceedings, regardless of which action was begun first. It is the first final judgment, although it may be in the second suit, that renders the matter res judicata in the other suit."

It is also held in that case:

"Where the county court of one county has found as a fact and there judicially determined the jurisdictional facts necessary to proceedings in the appointment of a guardian of the person and estate of a minor and has by order appointed a guardian for such minor, the jurisdiction thus acquired is exclusive, and such an order appointing such guardian should be recognized as a bar to proceedings for the appointment of another person as guardian in another county court of this state, when the former appointment is called to the attention of the latter court before an appointment is made in the latter court."

Respondents contend: The jurisdiction of the county court "having been invoked by the filing of said petition, and the issuance and return of notice showing proper service on the alleged incompetent, said county court of Okfuskee county had jurisdiction coextensive with the state, and to the exclusion of the county court of every other county in the state."

For this they cite and rely, in part, on the provisions of sections 1071 and 1418, O. S. 1931. Section 1071 provides:

"The county court of the county in which application is first made for letters testamentary or of administration in any of the cases above mentioned, shall have jurisdiction co-extensive with the state in the settlement of the estate of the decedent and the sale and distribution of his real estate and excludes the jurisdiction of the county court of every other county."

That section applies primarily to issuance of letters testamentary or of administration in the settlement of the estates of deceased persons. It is not by its terms made applicable to proceedings for the appointment of a guardian of a minor, for such appointment by express provisions of section 1419, O. S. 1931, must be made by the county court wherein the minor is an inhabitant or resident, or where the minor has property, if he resides without the state.

In Parmenter v. Rowe, 87 Okla. 158, 200 P. 683, it is said:

"Rev. Laws 1910, secs. 6195, 6196, 6197, and 6198, * * * apply in guardianship proceedings." (Sec. 6195, Rev. L. 1910, is the same as sec. 1071, O. S. 1931.)

In Parmenter v. Rowe, supra, it is held:

"The county court of the county in which application is first regularly made for letters of guardianship shall have jurisdiction co-extensive with the state in the settlement of the estate of the incompetent, and for the determination of any and all questions incident thereto, subject to the appellate jurisdiction of the district court."

That holding standing alone would appear to uphold the contention of respondents and call for a denial of the writ.

The first part of the third paragraph of the syllabus in Parmenter v. Rowe, supra, holds:

"Where a county court of this state appoints a guardian over the person and estate of an incompetent person and such proceedings are regular upon their face, the same are not subject to be attacked collaterally, and the court having assumed jurisdiction and made the appointment, such jurisdiction is co-extensive with the state and excludes the jurisdiction of the county court of every other county, and such taking of jurisdiction and making such appointment was the finding of every jurisdictional fact necessary to such appointment, and every other county court in the state is without jurisdiction to appoint a guardian for such incompetent."

That holding apparently supports the contention of petitioners, and since the proceedings in the Okfuskee county case are regular upon their face, the application was first regularly made in Okfuskee county, but the application in Tulsa county appears to have been regularly made, since the alleged incompetent was a resident of that county as found by the county court at the time the application was made and also at the time the appointment was made.

The question then arises, Can proceedings for the appointment of a guardian be regularly pending at the same time in two separate county courts?

If regularity of proceedings "upon their face" is all that is required, then, under the facts existing in this case, the answer must be in the affirmative. That two actions between the same parties or their privies, involving the same subject matter, may be regularly pending at the same time in courts of concurrent jurisdiction has many times been recognized. See Freeman on Judgments, supra, and cases therein cited.

In McDougal et al. v. Black Panther Oil Co. et al., 273 F. 113, it is held:

"Where two actions between the same parties involving the same cause of action proceed at the same time in courts of concurrent jurisdiction, it is not the final judgment in the action first brought, but the first final judgment, although that may be in the action last brought, that renders the issues res judicata in both actions."

In Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S. Ct. 506, 61 L. Ed. 1148. substantially the same rule was applied.

Since proceedings for appointment of a guardian, regular on their face, were pending at the same time in both counties, the rule in Sewell v. Christison, supra, is applicable. The reason is that the two courts being courts of concurrent or co-ordinate jurisdiction, the one is without power to vacate or set aside the judgment or decree of the other. Therefore, we hold that the final order or judgment first entered appointing a guardian is res adjudicata or a bar in the other court. Having reached this conclusion, it is unnecessary to consider the application of respondent to make the county judge of Tulsa county and other parties herein.

Writ of prohibition as prayed for is granted.

OSBORN, C. J., BAYLESS, V. C. J., and WELCH and CORN, JJ., concur. GIBSON, HURST, DAVISON, and DANNER, JJ., dissent.