113 Neb. 3 | Neb. | 1924
July 5, 1909, an order was made by the proper tribunal of Johnson county under which Bertha F. Ramp was committed to the state hospital for the insane at Lincoln, Nebraska, where she has ever since remained an inmate. December 29, 1918, proceedings were instituted in the county court of Seward county for the appointment of a guardian for Mrs. Ramp. In these proceedings Belle Berry filed a petition in which she alleged: “That Bertha F. Ramp is a resident of the state of Nebraska, and an insane person of the age of 51 years, and for 8 years last past has been and now is an inmate and confined as an insane person in the hospital for insane, at Lincoln, Nebraska; and that petitioner is á sister of said Bertha F. Ramp, and that the sole .and only surviving heir of said Bertha F. Ramp is Loyal Ramp, a son of the age of 11 years.” It was further alleged that the insane person was the owner of certain property, and that in order to conserve her interests it was necessary that a guardian be appointed to take charge of her estate, etc. Due notice was given of the pendency of this petition, and pursuant thereto, on January 28, 1919, the court found that each of the allegations of the petition were true, and Belle Berry was appointed guardian for the person and estate of the insane person, Bertha F. Ramp. By virtue of such appointment, Belle Berry took possession of the estate of her ward and ever since has held the same.
December 22, 1920, Frank Dafoe filed in the county court of Seward county the petition which is the basis for this suit, in which he pleaded his appointment, by the county court of Johnson county, as guardian of the person and estate of Bertha F. Ramp, insane; set out her commitment to the insane asylum, as heretofore stated; alleged that on June 16, 1919, there was filed with the county court of Johnson county, Nebraska, a petition, “by S. E. Smith, showing that Bertha F. Ramp was a resident of the county of Johnson, state of Nebraska, and is now in the state hospital for the insane at Lincoln, Nebraska, and is an insane person and
The cause was taken on appeal from the county court to the district court, where it was stipulated that the petition filed in the county court might stand as the petition in
Section 1129, Comp. St. 1922, provides: “The county court shall have exclusive jurisdiction of the probate of wills, the administration of estates of deceased persons, and the guardianship of minors, insane persons and idiots.”
Section 1577, Comp. St. 1922, provides: “The county court in each county, when it shall appear necessary or convenient, may appoint guardians to minors and others, being inhabitants or residents in the same county, and also to such as shall reside without the state, and have an estate within the same.”
The attack upon the proceedings had in the county court of Seward county is in fact based upon the failure of the petition in that proceeding to allege, or the court on hearing to find, that the insane person was a resident of Seward county. As before mentioned, the petition merely stated that Mrs. Ramp was a resident of the state of Nebraska, and it was silent as to the county of her residence and the findings of the court make no specific reference to residence, but find each of the allegations of the petition to be true and correct.
We are first confronted with the question as to whether this proceeding is a collateral or a direct attack upon the judgment of the county court of Seward county.
From the prayer of the petition, it is evident that, in this proceeding, the first end to be attained is to collect from Mrs. Berry, or her sureties, the funds now in her hands, the property of the ward, and the annulment of her letters of guardianship is a matter of only secondary consequence.
Was the judgment appointing Mrs. Berry guardian in Seward county void because the record failed to show affirmatively that the ward was a resident of that county? If the county court which made the order of appointment was a court of limited or inferior, jurisdiction in guardianship matters, the answer, no doubt, would be in the affirmative, for, in such a case, the record should show the existence of all facts necessary to confer jurisdiction. Jurisdictional facts will not be presumed in favor of the judgments of such courts. Gloor v. Torczon, 108 Neb. 402. But in courts of general jurisdiction it is not essential that every jurisdictional fact appear upon the face of the record, provided the nonexistence of such fact does not appear. If a petition sets out facts sufficient to show that a cause of action within the general jurisdiction of the court exists, the presumption of jurisdiction is then indulged.
“Courts of probate in America are entitled to the sanction which every court of record holds; they are not to be classed with those tribunals which have no authority beyond special powers for the performance of specific duties,
It is suggested in the brief of appellee that the county court of Seward county, having assumed jurisdiction and appointed defendant guardian of the person and estate of the insane person, the county court of Johnson county was without power to act, and that the order of appointment of plaintiff by that court is void. However, for the purposes of this case, it is not necessary to look into that question. Holding, as we do, that the appointment of defendant by the county court of Seward county was riot void, and
Affirmed.
Note—See Insane Persons, 32 C. J. sec. 267.