Micco v. Huser

In my opinion the fact situation here involved is so different from the facts of the cases upon which the majority opinion rests, that those cases are not authority for the conclusion reached in the majority opinion.

The facts here are that on March 23, 1938, proceedings for the appointment of a guardian for the said Peter Micco, an alleged incompetent, were duly and regularly instituted in the county court of Okfuskee county, and notice of the hearing thereof was duly served upon Micco according to law (sec. 1445, O. S. 1931, 58 Okla. Stat. Ann. sec. 851). When the petition was filed and the notice was served, the alleged incompetent was a resident of Okfuskee county. But subsequently, and pending due continuance of the hearing, the petitioner herein, who is the wife of the alleged incompetent, joined by Joe Brown, U.S. Probate Attorney, as his next friend, filed a petition in the county court of Tulsa county for the appointment of a guardian. Thereafter the present petitioner was appointed guardian, and qualified as such in the county court of Tulsa county on May 18, 1938. The following day she appeared in the county court of Okfuskee county and moved for dismissal of the proceedings there, assigning as grounds her appointment in Tulsa county. In this she was joined by Dennie H. Petty, U.S. Probate Attorney for the district. The motion was denied, and after hearing had, R.L. Davis and J.H. Doggett were appointed guardians of the person and estate of the said Micco. Petty thereupon gave notice of appeal to district court, and Hettie Micco immediately instituted the present proceedings.

In the meantime E. Huser had disqualified in the matter, and Tom Hazlewood, who entered the order, was elected as special judge.

At the hearing in Tulsa county the residence of Peter Micco was placed in issue by petition filed amicus curiae by George Deer, who was the petitioner as next friend of Micco for the appointment in Okfuskee county. That issue was evidently decided against the contention of Deer, for the proceedings appointing guardian are apparently valid on their face and therefore carry the presumption of valid adjudication of jurisdictional questions. Section 1082, O. S. 1931, 58 Okla. Stat. Ann. sec. 2; Powers v. Brown,122 Okla. 40, 252 P. 27.

Petitioner contends that she is entitled to the writ under the rule expressed in Powers v. Brown, supra, and in this connection asserts that according to the holding in that case the order of the county court of Tulsa county was res judicata as to all jurisdictional facts necessary to the proceedings in Okfuskee county. The general rule as stated in the Powers Case reads as follows:

"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 minors and has by order appointed a guardian for such minors, the jurisdiction thus acquired is exclusive and such an order appointing such guardian is a bar to guardianship proceedings in another county court of this state."

In further support of the foregoing contention, petitioner cites Sewell v. Christison, 114 Okla. 177, 245 P. 632; Jackson v. Haney, 166 Okla. 13, 25 P.2d 771; Woodruff v. Firestone,182 Okla. 606, 79 P.2d 210.

On the other hand, the respondents contend that the jurisdictional question is controlled by the statutes, sections 1071, 1418, O. S. 1931, 58 Okla. Stat. Ann. secs. 7, 893, which, it is alleged, by their express terms place exclusive jurisdiction in the county court where petition for appointment of guardian is first properly filed. They would support this contention by State ex rel. Monahawee v. Hazelwood,81 Okla. 69, 196 P. 937; Parmenter v. Rowe, 87 Okla. 158, 200 P. 683; Baird v. England, 85 Okla. 276, 205 P. 1098; State ex rel. Mudd v. County Court of Osage County, 168 Okla. 470, 34 P.2d 244; Dillard v. Franklin, 177 Okla. 34, 57 P.2d 629.

Sections 1071 and 1418, supra, read, respectively, as follows:

"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.

"The power conferred upon the county judge in relation to guardians and wards may be exercised by him at chambers or as the acts of the county court, when holding such; and any order appointing a guardian must be entered as and become a decree of the court. The provisions of this chapter relative to the estates of decedents, so far as they relate to the practice in the county or district courts, apply to proceedings under this article."

These sections were carried over from the territorial statutes and placed in force after statehood. They are the same as sections 1255 and 1637 of chapter 19, Laws of 1890.

The above cases cited in support of respondent's contention, except Parmenter v. Rowe, supply section 1071 as a rule of law governing the question of jurisdiction as between county courts attempting to administer 'upon decedents' estates, that is to say, the court where petition for administration or for probate of a will is first filed shall have jurisdiction to the exclusion of all other courts. But in all of those cases the court where petition was first filed had entered orders wherein it had determined all jurisdictional questions prior to such determination by the court where a second petition had been filed. In Parmenter v. Rowe it was held that section 1071 was applicable in guardianship cases by reason of the provision in section 1418 that "the provisions of this chapter relative to the estates of decedents, so far as they relate to the practice in the county or district courts, apply to proceedings under this article." However, it is there disclosed that the appointment of guardian was made by the court where petition was first filed, thus settling the jurisdictional questions prior to such adjudication by the court where a second petition was filed. It appears, therefore, that the application of section 1071 in the cases cited by respondents was unnecessary to the different decisions and, as suggested in Presbury v. County Court of Kay County, 88 Okla. 273, 213 P. 311, may have constituted no more than dictum. In the Parmenter Case the rule as to guardianships was expressed in the second syllabus, as follows:

"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."

Turning again to the cases cited above in support of petitioner's contention, we find that all of them, with the exception of Sewell v. Christison, present factual situations identical in character to the cases cited, above, by respondents with reference to the jurisdictional questions. In each case, with the aforesaid exception, the county court where petition was first filed determined the jurisdictional questions prior to such determination by the court where the second petition was filed, and the first court was held to have exclusive jurisdiction. In the Sewell Case petitions were filed in two different courts on the same day. This court held that the county court first determining the question of its jurisdiction obtained jurisdiction of the administration proceedings to the exclusion of the other court. It is not shown which of the petitions was actually filed first.

In Sewell v. Christison this court actually predicated its decision upon the general rule of res judicata as applied in the ordinary civil action to judgments entered by courts of concurrent jurisdiction in cases involving the same parties and subject matter; the judgment first rendered in such cases is ordinarily a bar to further proceedings in the other court. That rule is also adopted by the court in the fourth syllabus of Jackson v. Haney, supra, and reads as follows:

"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."

There the rule is applied to guardianship proceedings. But in none of these cases was it necessary to extend the rule to cover the question of the effect of priority of filing petitions in the different courts; that question was not present in any of them.

Thus it is revealed that there is actually no conflict between any of the decisions cited above and relied on by the parties. The identical question here presented seems never to have come to this court before, unless it may be said that it was considered to some extent in Presbury v. County Court, supra. That was a will case. The testator had resided in Kay county for many years, but died in Osage county at the home of a son, Immediately after the testator's death the son filed a petition in the county court of Osage county for the probate of the will. Four days later a like petition was filed in the county court of Kay county by the custodian of the will, who was also the guardian of the testator as an incompetent under appointment made in Kay county a short while prior to the death of the testator. Before either court had determined the question of its jurisdiction, the petitioner in Osage county sought a writ in this court prohibiting further proceedings in the county court of Kay county. He relied entirely upon the statute, section 1071, supra, asserting that since his petition to the county court of Osage county was filed prior to the other, the Osage county court by reason of the statute had exclusive jurisdiction to settle the estate. It was held, however, that section 1071 applied only to the cases mentioned in section 1070, O. S. 1931, 58 Okla. Stat. Ann. sec. 6, which deals with the administration of the estates of nonresident decedents. The court said, further, that as to a resident decedent only the county court of his residence could have jurisdiction, as provided by section 1069, O. S. 1931, 58 Okla. Stat. Ann. sec. 5. That case, so far as concerns us here, stands but for the proposition that as to resident decedents section 1071 does not confine jurisdiction to the court first petitioned for letters. It does not purport to overrule the syllabus, above, in Parmenter v. Rowe wherein section 1071 is applied to guardianship cases.

Examination of all the foregoing cases reveals one important question yet outstanding and undetermined by this court. That question is whether the court first petitioned for letters of guardianship or of administration in the estates of resident decedents shall thereafter have exclusive jurisdiction in all cases where it is conceded or conclusively shown that such court at the time of filing the petition was the court of the exclusive statutory venue.

The exclusive venue of proceedings for the appointment of guardian for minor wards resident of the state is the county of their residence. Section 1419, O. S. 1931, 58 Okla. Stat. Ann. sec. 761. In my opinion this applies to incompetent wards. Probate procedure is governed by statute, and the statutes must be substantially complied with. In the Parmenter Case we have construed the statutes with reference to the question of first and exclusive jurisdiction in guardianship cases. In so doing we expressed the rule quoted above. That decision has been neither overruled nor criticized in later cases. However, the court's fourth syllabus in Jackson v. Haney, above, appears to be a contrary pronouncement. The latter holding, as I have said, is based upon the general rule applying to the judgments of courts of general and concurrent jurisdiction.

But the county courts in probate are not courts of concurrent jurisdiction in the matter of the appointment of guardians for wards resident of the state, or for the appointment of administrators and executors for resident decedents. Exclusive jurisdiction in such matters is conferred upon the county court of the county where the ward resides (sec. 1419, supra), and where the deceased resided at the time of his death (sec. 1069, O. S. 1931, 58 Okla. Stat. Ann. sec. 5). Although innocent parties dealing with guardians or administrators serving under apparently valid appointments of courts without jurisdiction are protected, and although such appointments may not ordinarily be attacked collaterally, this in no way should affect proceedings in the same case previously commenced in the proper court so as to deprive that court of its jurisdiction.

Section 1418, supra, specifically adopts to guardianship matters all the suitable statutes applying to the administration of decedents' estates. Section 1071 is one of those statutes so adopted. In Presbury v. County Court, supra, we said that section 1071 applied only to cases of nonresident decedents. Then must it of necessity follow that by the adoption of said section to guardianship cases it could apply only to nonresident wards with property in the state? Such construction does not necessarily follow. In the Presbury Case it was not shown which of the two county courts was the court of the decedent's residence. Neither had determined the question of its jurisdiction, and this court left them where they were when the petition was filed for writ of prohibition. The precise question here presented was not actually determined in that case; it was not known which of the two courts actually had statutory jurisdiction. This court merely refused to interfere.

After due consideration of the statutes and our decisions, I think that a true construction of section 1071 is that the real intent thereof was to accord to the county court where petition in cases of this character is first properly filed and timely notice to the incompetent is had, and there has been no previous adjudication of the same matter, the exclusive jurisdiction of such case. In the matter of the appointment of guardians for local wards a petition may be properly filed only in the county of his residence.

The correct view in cases of this particular character, where the first petition is filed in the court of statutory jurisdiction, is concisely and well stated by Mr. Justice Busby in his specially concurring opinion in Jackson v. Haney, above, as follows:

"I concur in the conclusion reached herein, to wit, that the guardianship appointment by the Muskogee county court is the valid one. But this, for the reason that the petition for probate of will designating the appointment of guardian filed in the Muskogee county court vested that court with jurisdiction of the subject matter under consideration. When the jurisdiction of that court was invoked first, and its machinery placed in motion, it retained its control to the end of the controversy to the exclusion of a court of co-ordinate jurisdiction. To hold that the time of appointment determines jurisdiction would, in my opinion, promote mad races between courts of co-ordinate jurisdiction to see which could enter a final order first. This would tend to discourage that deliberation so essential to a determination of the rights of parties in judicial tribunals."

I am of the opinion, therefore, that by reason of the provisions of sections 1418, 1419, 1071, supra, the county court whose exclusive statutory power to appoint a guardian is properly invoked by petition and service of notice, prior to appointment of a guardian for the same ward by order of some other court, shall have exclusive jurisdiction of such appointment and management of the ward's estate until such time as the proceedings may be removed to some other court as provided by section 1088, O. S. 1931, 58 Okla. Stat. Ann. sec. 10. These sections were originally contained in the same chapter of the Probate Code. They now appear in chapter 64, R. L. 1910, the official statutes, and were not placed in separate chapters until the 1931 Statutes were published.

Under the circumstances here presented, the writ should be denied.