Clarksville weekly chronicle. (Clarksville, Tenn.) 1873-1890, 1880-03-06

Ing TO lmpeacn us Qeere6S, and COM
plainants cannot in such an attack
aver and prove against the record.
The demurrers present the grounds
in various forms, but the foregoing
is believed to be substantially the
questions they present.
These proceedings were had un-
der the Act of 1883 IN. CO., Chap.
80, Sec. s.
The determination of these cues
tions depends in great measure up
on the proper construction of said
act. threads as follows:
And be it further enacted,
That when any guardian shall have notice
OF any debt or demand against the estate of
ms or her ward, he or she may apply to the
county court wherein such guardianship
was granted, for an order to sell so much of
the personal and real estate of such ward as
may be SUFFICIENT to discharge such debt or
demand and such order Of the court shall
particularly specify what property may be
sold, and such property shall be sold on fl4e
same credit and under the same regulations
as property sold by executors or administra-
tors, is or may be by law. F."
1t will be seen that it nowhere di-
rectly or by Implication provides
for or requires service of any pro-
cess upon the minors. IL was evil
IDENTIFY proceeding IN rem, and was
not intended to be an adversary
proceeding VS.. the person of the
ward, the guardian representing the
minors and their estate in the pro-
ceedlngs. 1t has all along been so
considered by the courts of North
Carolina as is evident from the fact
that it has been several times before
the Supreme court of that State, the
reports showing that the proceed
ings in those cases were not adver-
sary, or by service of notice on the
heirs, and no question ON this ac-
count was ever raised. / am salts
fed that the statute does not require
service of notice upon the minor
wards, and that if there had been
no notice in these cases served on
the minors, it would not affect the
validity of the proceedings.
Was it necessary under the act,
that the application to the court for
an order to sell must have been by
petition in writing, in order to give
the court jurisdiction
The statute itself nowhere pro-
vides that the application shall be
so made. 1t simply provides that
the guardian mayapply to the court,
etc. If we are correct in constituting
that the said section did not con-
template adversary proceedings,
and that the wards were not neces-
sary parties, why should we construe
it to mean that the application to
the court must have been in writing
otherwise the court could have no
jurisdiction of the subject matter.
We readily concede that a formal
petition in writing, bringing the
matter before the court, would be
the better practise, but suppose it
was not thus formally presented,
and the guardian did upon motion,
by oral representation, make it sat
isfactorily appear to the court that
he had notice of debts or demands
VS.. the estate of the wards, and
therefore did in like manner apply
to the court for an order to sell, sup
porting it by evidence, shall it be
said that in proceeding in rem, to
which there were no adversary par
ties, when the application had been
thus made, and evidence submitted
to the court sufficient to make all
the matters satisfactorily appear to
the court, which the orders in these
cases recite We're made to so appear.
Shall it be said that because the APP
plicatiOn so made was not made by
preferring a formal petition in
writing, to which no adversary par
ties were needed, that the court had
no jurisdiction of the subject mat
ter, and the entire proceedings were
nullity.
Jurisdiction has been thus defined:
''The power to hear and deter
mine cause is jurisdiction it is
coram judice whenever a case is
presented which brings this power
into action" (6 Peters, 700. Free
man, Void Judicial Sales, page 49,. |
eff the law confers the power to |
render a judgment or decree, then |
the court has Jurisdiction, what shall |
be adiudged or decreed between the |
parties, and with whichis the right |
of the case, is judicial action by |
haavi,,es ar dot a-ssair1isass IT'D GA Pc |
tiers, 7IS).
The power to hear and determine
the application of guardian for
such order as was granted in these
cases, was certainly conferred upon
the court by this act. The mode of
application was not specifically des-
cribed by this act. Every fact nee
essary to bring this power of the
courtintO action was certainly made
to satisfactorily appear to the court,
and it did act. We could not say
that mere absence of a petition in
writing, in nOn-adversary pro-
ceeding like this one, was fatal to
the proceeding, if that question
were necessary to be now adju-
dictated.
But a direct adjudication of this
question (of the necessity for the APP
plication to have been in writing),
is unnecessary, in the view we have
taken of the question raised by the
remaining ground of demurrer,
which we now proceed to notice.
Can the complainants in a collat-
eral proceeding, as this is conceded
to be, attack the DEGREES of the
County Court of Pleas and Quarter
Sessions for want of jurisdiction.
The determination of this question
depends upon the preliminary ques-
ton, as to whether the said court
was a court of general Jurisdiction,
or of limited and special jurisdic-
ton. For if it was court of gener-
al Jurisdiction, its DEGREES can be
tried alone by the record. "The
record is absolute verify, to contra
dict which there can be no aver
ment or evidence; the court having
power to make the decree, it cam I
not be impeached only by fraud in 8
the party who obtains it." (6 Peters,
729. Howard, 340).
This principle has already been
fully discussed in the other class of :
cases, as well as a conclusion reach
ed, that said court was a court of
general jurisdiction, and further dis
cussiOn upon this point is deemed
wholly unnecessary. We are of
opinion that full and impartial ex-
of the authorities bear
ing upon this question, that said
court being one of general jurisdic-
ion at the time those decrease were
that it was competent to
decide upon its own jurisdiction,
hat it did have jurisdiction. of the
subject matter, that it put its juris-
fiction power in action, and exer-
Used it by a definitive:decree, recit-. 1
ng every jurisdictional fact neces-
airy to its validity. l am further
If opinion that in these cases, the
purchaser was not bound to look be-