42 Miss. 165 | Miss. | 1868
delivered the opinion of the court.
It appears that, at the February Term, 1859, of the Probate Court of Pontotoc county, the appellant was appointed, by said court, guardian of the persons and estates of John Crum and Harriet Crum, the appellee, infant children and heirs of Mary Crum, deceased; and that he returned inventories of the personal estates of his said wards, settled his first annual account of the guardianship of the appellee, and tendered to the court his second annual account as such guardian, which was rejected by said court at the March Term thereof, 1861, and his letters of guardianship revoked, on the ground of the want of power in the court to grant them, for the reason that Alexander Crum, the father of the said John and Harriet Crum, was living at the time of the appointment of the appellant as guardian as aforesaid; that, at the February Term, 1866, the said Alexander Crum was appointed by said court guardian of liis said minor children, John and Harriet; that the appellant was cited to appear at the May Term, 1866, and render a final account of his guardianship of said John and Harriet Crum; and that he appeared at that term, and objected to rendering a final account as guardian, on the ground that the court had no jurisdiction, for the reasons, that the said minors, John and Harriet Crum, were not orphans át the time he was appointed their guardians, that his letter of guardianship had been revoked at a previous term for that reason, and that their said father had been appointed and was then their guardian. These objections were overruled by the court, and the appellant required to settle his final account of his guardianship of the
The constitution of this State, at the time the letters of guardianship were granted to the appellant, gave jurisdiction to the Probate Court in orphans’ business. And, as the father of these minors was living at the time the appellant was appointed their guardian, they were not orphans, and the Probate Court had no power to appoint a guardian for them, and, therefore, the grant of the letters of guardianship was void.
This question has already been settled by the adjudications of this court in the cases of Stewart v. Morrison, 38 Miss. 417, and ex parte Atkinson, 40 Miss. 17, where the court say that none but a fatherless child was an orphan, and that the Probate Court had no jurisdiction over the persons and estates of minors who were not orphans.
It is essential' to tho validity of a judgment or decree that the court rendering it should have jurisdiction of the person and subject-matter. And it is well settled that judgments and decrees of courts having no jurisdiction are void db initio.
In this case, tire order of the court appointing the appellant guardian being absolutely void, he, therefore, never was the legal guardian, and the court had no authority over him as guardian; and the whole proceeding on said final settlement was coram non judice, and void.
In another forum, the appellant can be made responsible for the property of said minors that came to his hands, and foi‘ the management of their estates.
The decree is reversed, and the cause dismissed here for the want of jurisdiction in the court below.
