Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-11
DECISIONS OF THE HIGH COURT.
ERRORS AND APPEALS.
Jack Fl Freedman f.

VS..
Jesse Thompson.
appeal from the Probate Conrt of Co
Diah County.
OPINION OF THE COURT DELIVERED BY
JUDGE HARRIS. fy
Under the provisions of the act of |
the Legislature of this State, passed |
on the 22d of November, 1865, to
regulate the relation of master and APP
prentice, the sheriff of Copiah county
reported appellant to the Probate
Court of said county as an orphan
freedman, under the age of eighteen
years, with no one to provide for him,
and thereupon the Probate Court,
without notice to appellant, and with
out his appearance, in his absence,
made an order directing the Clerk of
said Court to apprentice. said appel
liant to Jesse Thompson, his former
owner, until he should arrive at the
age of twenty one years, at certain
yearly hire, to be paid to appellant at
the expiration of his minority, upon
the said Thompson executing bond
!. according to the provisions Of the
statute
Afterward, during the same term of
said Court, appellant by his next
friend came into Court and made his
motion to set aside said order and pro-
ceedings had thereon. First, because
the said appellant, at the date of said
report by the sheriff, was nineteen
years old instead of seventeen, as re
ported by said sheriff and adjudged by
said Court. Second, because appel
liant had no notice of said report, or
of the proceedings in the Probate
Court Third, because no guardian,
ad Item was appointed by said Court
to protect his interests pending said
proceeding.
This motion was oyerrulel by the
Court, and from the Judgment of the
Court overriding said motion, this APP
peal is prosecuted.
The question presented for our de-
termination is, whether it is compe
tent for the Court Of Probates, under
the act of the Legislature, to order its
Clerk to apprentice an orphan freed
man without his presence and without
notice to him.
The act does not require this notice,
and doubtless the court below, look
ing to the act of the Legislature as the
source and measure Of its duty, as well
as of its power, for this reason deemed
| it unnecessary.
But the principle is universal, that
| i l., IL Il
or binding upon party who has had
no notice of such proceeding against
him. The court must not only have
jurisdiction Of the subject matter, but
also of the person, to give validity to
its final judgments, orders and DEGREES.
And it is not in the power Of the Leg
islature, under our Constitution, to
dispense with this notice, either actual
or constructive.
In the case before us, it was the duty
of the Probate Court, upon the report
of the sheriff, to order a citation re
curing the appearance Qfthe appellant
at a day to be therein appointed, both
for the purpose of enabling the court
to ascertain and discharge its duties,
and for the purpose of giving the or
phan or minor an opportunity Of be
ing heard before his rights are con-
Guided, The court by the act is made
the guardian of the interests of these
wards. It must first be satisfied that
the minor or orphan before it is un-
der eighteen years old. 1t must next,
| in the absence of record testimony
showing the age of the minor or or
phan, ascertain in the best manner 1T
may, and fix the age Of the said minor
or ward, so that the period OF his ser
vice may be fixed and definite, and not
uncertain. 1t must, in the case of n
| minor whose parent or parents are tlv-
ing, ascertain whether they "have not
the means" or whether they "refuse
to provide for and support said mi
nor" 1t is to look. to the character
and ability Of the master, and ''have
particular care to the interest of the
minor or orphan--that he is a suita-
BILE person, giving preference to the
former owner of the minor or orphan,
when in the opinion of the court, he or
she be suitable person for that pur-
pose. In all these matters the ward
has direct and deep interest, and has
a right to be heard by the court, who
is thus constituted his peculiar guar
dian, as well as the guardian of the
interests of the public in this respect
1t is further the duty of the court to
fix such 'terlns," as to hire, or com
pensation for the service of said ward
as the Judge, under the responsibility
of his oath of Office, as well as the pc
culiar trust and confidence reposed in
him by the statute, may deem reason
able and just to both the master and
the apprentice And in this, the ward
has also a direct interest, and has the
right to be heard for the purpose Of
aiding the Judgment of the court in
the discharge Of its several duties fol
the benefit of the ward. ...
The necessity of notice, and the APP
pearance of the ward in court, to en-
able the Judge Understandings, to fix
the precise age of the ward, so that he
may not be deprived of his freedom
when he arrives at twenty one years
of age, and also to determine from his
age, size and qualifications, the value
of his services by way of hire, is OBJ
vious from an examination of the act
1t is urged that after service Of no
tice on the minor or orphan, and be
fore further action, the court should
have appointed a guardian ad Item I'M
der article 80, page 431 of the code.
The act of the Legislature referred
to, has relation to matters of litigation
involving the settlement of estates OF
pecuniary interests, when the court in
its judicial capacity must determine the
conflicting rights of the parties before
it, and therefore could not be properly
or consistently charged with the duty
of representing the interests of the in
FAINT litigant In such cases, (where
there is no guardian. or he is interest
ed, or absent) the statute requires the
appointment of guardian dd Item
But in the case before us, the statute
specially charges the court with the
duty of protecting the interests of the
ward, and hence no guardian is nee
essary. g. a Il - "a n
Let the order and Judgment of the
court below be reversed, and cause re-
manded for further proceeding to this
opinion.
A REMARKABLE CAsE.-Hy lropho-
I,;o e ,,suolIu in farrad to ha com mimi