State ex rel. Gilbreath v. Bunce

65 Mo. 349 | Mo. | 1877

Sherwood, C. J.

Suit upon the defendant’s bond as curator of the estate of the relator. The petition avers that the relator, Willie Gilbreath, is an infant, under the age of twenty-one years, and is now a resident of Washington county, in the State of Arkansas, and that Bunce is the curator of his estate, acting under appointment of the probate court of Cooper county, Missouri, and has in his hands, as curator, notes and money amounting to the sum of two thousand dollars; that the General Assembly of the State of Arkansas by an act approved February 18, 1869, entitled “ An act to confer upon the probate and circuit courts of the State of Arkansas certain powers for removing legal disabilities of minors;” empowered the several probate courts of the state to authorize any person who is a resident within their jurisdiction, and who is under twenty-one years of age, to transact business in general, or any particular business specified, in like manner and with like effect as if the act or thing was done by a person above that age, and that such act should have the same force ancl effect as if done by a person of full age; that in pursuance of said act tbe probate court of Washington county, Arkansas, at its September term, 1875, ordered and adjudged that the disability of non-age of said Willie Gilbreath be removed, “ so far as to authorize him to demand, sue for and receive all moneys belonging to him in ■the State of Missouri, in the hands of his curator or any other person, and to execute releases therefor in the same manner as if he was of full age;” that by virtue of said act and judgment the legal’ disability of non-age was removed so far as to authorize him to demand, sue for and receive all money belonging to him in the hands of his curator in the State of Missouri. The petition then sets out the bond of defendant Bunce, as curator, and for breach thereof, alleges the refusal of Bunce to pay over the money upon demand, and asks judgment for the amount in his hands. The suit is prosecuted by plaintiff in his own name and he appears thereto by attorney.

The defendants demurred to this petition, alleging as grounds thereof, that the petition showed upon its face that Willie Gilbreath was an infant under 21 years of age, and that he could not prosecute this suit by attorney, but must do so by next friend; that it also showed that Bunce was lawfully possessed of the money, and therefore stated no cause of action; that the act of the Legislature and the order of the probate court of Arkansas was of no validity in this state, and could not affect the property under Bunce’s control; and lastly, because the petition stated no cause of action. The petition was held insufficient, final judgment entered for defendant, and the case comes here by writ of error. The demurrer was well taken in that the petition showed upon its face that the party to whose use this suit is brought, is an infant under the age of 21 years, and does not appear by guardian in conformity to statutory regulation. (§ 6, p. 1014, Wag. Stat.; lb. § 1, et seq., p. 1003; Higgins v. R. R. Co., 36 Mo. 419; Jones v. Steele; lb. 324; Copeland v. Yoakum, 38 Mo. 349.) But the demurrer was well taken for a far weightier reason, a reason going to the very foundation of the suit. The Legislature of Arkansas did not possess the power to pass a law to override and control our laws; no more could it authorize the probate court of "Washington county to do this. (Smith v. McCutchen, 38 Mo. 415; Story on Con. of Laws, §§ 539, 18, 103.) Our own statutes (1 Wag. Stat., p. 672, § 1, and p. 681, § 48,) provide when infants shall attain their majority, and they must be our guide, and not the laws that emanate from a foreign jurisdiction. Judgment affirmed.

All concur.

Areirmed.