Ripitoe v. Hall

1 Stew. 166 | Ala. | 1827

JUDGE CRENSHAW.

In this case, there are many assignments of error. That which was principally relied on is, that the jurisdiction of the Court does not appear from any part of the proceedings. By the 47th section of the act of 1803, ^a the Orphan’s Court, whose powers by subsequent statute have been vested in the County Court, is authorized (for good and sufficient cause) to displace a guardian. The Court then had jurisdiction of the subject matter. It was contended that the record must shew that the ward was domiciliated in Montgomery county, and that Ripitoe was appointed guardian by the Court of that county. This seems to be more properly matter of evidence. After verdict the objection comes too late. It should have been made, or insisted on before the defendant plead to the merits. By pleading to the merits, he admitted that he was amenable to the jurisdiction of the tribunal, before whjch ‘ e was charged. All the pleas shew that he was before the proper tribunal, and by one of them, he has averred that be has made his returns, and that his accounts vxre allowed. If I understand the meaning of language, tj,js obviously implies that his accounts had been allowed by the Court of Montgomery county, in which the complaint whi h plea was intended to answer, was made. It also appears from the evidence which is made apart of the record, that Ripitoe had returned an inventory and had it ¡ecorded, 'hough the order allowing it was not recorded. This shews at least, that he conceived himself to he ansv erable to that Court, and implies that the guardianship had been there granted, and the other extraneous circumstances necessary to give that Court jurisdiction. As the statute prescribes no particular mode of proceeding, nothing more is necessary to appear of record, than that the Court had jurisdiction of the subject matter of controversy; that the guatdian hadan opportunity of being heard, and has been removed for good and sufficient cause.

Rut it is also assigned, that no sufficient cause of removal appears. Itwas contended that the only legal cause of a removal of a guardian is, that after being summoned, he refuses or neglect to return an inventory, or to account annually. This is, indeed one cause of removal, but the statute says he may be displaced for any good and sufficient cause. That-is, as I conceive, for such cause as would authorize a court of equity, or any court vested with authority, as to the custody of the person and estate of a minot, to remove his guardian. No court of equity would hesitate long to remove a guardian for the causes set forth in this complaint, the verdict of a jury having ascertained the complaint to be true.

It was farther objected, that matters were tried by the jury,-which should have been determined by the Court. The trial by jury was claimed by the appellant; he plead not guilty to the whole matter, and cannot now be permitted to take advantage of his own wrong, and insist that this was error. All the other objections, I think, are equally unavailing. Indeed I \iew this proceeding as in the nature of a petition, or suit in equity, &c. where strict rules of pleading and technical forms are not observed; and tiie revising Court ought not to be astute in searching for objections in distinctions, which might perhaps be available in an action at law, but cannot be regarded in equity, unless the record shews that a material right, or ■some principle of justice has been violated. It is the opinion of the maiority of the Court, that the judgement be affirmed- '

Goldthwaite, for appellant. Thorington, for appellee,

cited Laws Ala. 196, sec. 6 ; 2 Scho. and Lef. 173, 192 ; Reeve’s Dona. R. 127.

a Laws Ala, 384,■