10 S.W.2d 517 | Ark. | 1928
STATEMENT OF FACTS.
Minor Gilmore brought this suit in equity against the Union Sawmill Company to set aside a decree of the chancery court removing his disabilities as a minor, on the ground that the court had no right to render *298 said decree, and to set aside the deed executed by him to the Union Sawmill Company pursuant to said decree.
The record shows that Minor Gilmore was born on May 16, 1905, and that, on the 8th day of June, 1922, at a regular term of the court, the chancery court of Union County, Arkansas, removed the disabilities of said minor in order that he might convey a tract of land in Union County, Arkansas. After reciting that the petition of Minor Gilmore, by his next friend, comes on to be heard upon the testimony of witnesses taken in open court, the decree of emancipation contains the following: "from all of which the court finds the said Minor Gilmore is a minor of the age of 18 years, a resident of Union County, Arkansas, and of good moral character, and of reasonable education," etc.
On July 22, 1922, Minor Gilmore executed a deed to the Union Sawmill Company to the land described in the emancipation decree.
The present suit was instituted on the 26th day of April, 1927. On the trial of the case, in addition to the facts stated above, it was shown that Minor Gilmore was not 18 years of age at the time the emancipation decree was rendered in the chancery court. He admitted that he testified that he was 18 years of age at that time and a resident of Union County, but stated that he afterwards learned that he was mistaken in his age, and that he was not 18 years of age at the time. Other testimony was introduced to show that he was not 18 years of age at the time the emancipation decree was rendered.
The chancellor found that, under the facts stated, the plaintiff could not successfully attack said decree, and his complaint was dismissed for want of equity. The case is here on appeal.
(after stating the facts). Counsel for plaintiff rely for a reversal of the decree in this case upon the authority of Tays v. Johnson,
In Hindman v. O'Connor,
In Young v. Hiner,
That principle controls here. The decree of the chancery court removing the disabilities of the minor in the case at bar recited that he was a resident of *300 Union County, and was eighteen years of age. The trial court, upon proof heard, found that Gilmore was a resident of Union County, and that he was eighteen years of age. This was a necessary finding of the chancery court in determining its jurisdiction in the premises, and its jurisdiction cannot be collaterally attacked in that respect. The distinction is this: in the case of Tays v. Johnson, supra, there was no proof that the jurisdictional facts were recited in the decree removing the disabilities of the minor. Hence the court held that the judgment was subject to collateral attack. In the case of Young v. Hiner, supra, the jurisdictional facts did appear upon the face of the record, and, on that account, were held conclusive on collateral attack. In the case at bar the decree removing the disabilities of the minor, as we have already seen, contains a recital that the minor was eighteen years of age, and was a resident of Union County.
We conclude therefore that it was not subject to collateral attack, and the decree of the chancery court will be affirmed.