Coolidge v. Allen, 82 Me. 23

Coolidge v. Allen

82 Me. 23 | Me. | 1889

Danportu, J.

It is undoubtedly true that a judgment of the probate court upon matters within its jurisdiction is conclusive, until it is reversed. But it is equally true that jurisdiction of the subject matter only, is not sufficient. The preliminary requisites, and the course of proceedings prescribed by law, must be complied with or jurisdiction does not attach, and the judgment will be, not voidable merely, but void and may be avoided by plea and proof. This principle is so clearly stated and fully illustrated by Shaw, C. J., in Peters v. Peters, 8 Cush. 529, 543, and cases there cited, that further discussion of it is not necessary.

In cases like the one at bar, R. S., c. 67, § 6, requires, as a preliminary to the appointment of a guardian, that there shall be an inquisition by the municipal officers of the town where the person for whom a guardian is asked for, resides, “into the allegations made in the applications.” Without this, and previous notice to the subject of the application, the court can not proceed, Holman v. Holman, 80 Maine, 139. No such requisition was had in this case and the necessary result is that the appointment was without authority and void.

But though the appointment was void and as such does not afford protection to the defendant, it is not without its influence. There is no suggestion of any want of integrity or fidelity on the part of the defendant. The plaintiff, so far as appears, recognized *26him as guardian and made no objection to his acting as such on the ground of any illegality in his appointment, until April 16, 1887. Under these circumstances, though the defendant must account for the whole amount received by him from, or in behalf of the plaintiff, yet the amount turned over to the guardian subsequently appointed, as well as that paid to her, or for her benefit at her request, or with her consent express or implied, must be deemed accounted for, and deducted from the amount received. For the balance, if any, the plaintiff will be entitled to recover.

Damages assessed at nisi prius.

Peters, C. J., Virgin, Libbey, Foster and Haskell, JJ., concurred.