Soules v. Robinson.

and he had no notice thereof; that he never appeared to said proceeding in person or by attorney, and was not produced in open court at the trial of said cause, nor was there any entry of record showing that the court was satisfied that he could not be produced in court without injury to his health.

It will be observed that the record of the judgment and proceedings in the Clay Circuit Court in which said Reeves was declared of unsound mind is entirely silent as to any appearance of said Reeves thereto, or as to his presence in court, or as to any notice being given to or served upon him.

As the Clay Circuit Court is a court of general jurisdiction and had jurisdiction of the subject-matter of such proceedings, it will be presumed under such circumstances, as against collateral attack, that it acquired jurisdiction of the person of said Reeves before rendering the judgment. Gridley v. College, 137 N. Y. 327, 33 N. E. 321; King v. Bell, 36 Ohio St. 460, 470; Shroyer v. Richmond, 16 Ohio St. 455, 456; Heckman v. Adams, 50 Ohio St. 305, 315, 318, 34 N. E. 155; Bush v. Lindsey, 24 Ga. 245, 248, 71 Am. Dec. 117; Warner v. Wilson, 4 Cal. 310; Ockendon v. Barnes, 43 Iowa 615; notes to State v. Billings, 43 Am. St. 534-537; notes to Balton v. Schriever, 18 L. R. A. 242,243; Woerner's Am. Law of Guardianship, pp. 111, 112, 389, 446, 447; 1 Woerner's Am. Law of Administration, §145; Freeman on Judgments (4th ed.), $124; Dequindre v. Williams, 31 Ind. 444; Bruce v. Osgood, 154 Ind. 375, 377, 378, 379; Cunningham v. Tuley, 154 Ind. 270; Long v. Ruch, 148 Ind. 74, 78; Earle v. Earle, 91 Ind. 27, 42; Clark v. Hillis, 134 Ind. 421, 426, 427, and cases cited.

It is a general rule that, when want of notice does not affirmatively appear from the face of the record of a court of · general jurisdiction, the judgment is not void. Clark v. Hillis, 134 Ind. 421, 427; Palmerton v. Hoop, 131 Ind. 23; Earle v. Earle, 91 Ind. 27. It is evident that said judgment of the Clay Circuit Court is not void, and is not, therefore, subject to collateral attack. Lee v. McClelland, 157 Ind.

Soules v. Robinson.

84, and cases cited. In such a case, if there was in fact no appearance, and the subject of the inquiry was not produced in open court, nor any notice given to or served upon him, and the record is silent as to such matter, although the judgment is not subject to collateral attack, it may be set aside by the court in which it was rendered on the application of any person who has the right to be heard. Note to State v. Billings, 43 Am. St. 534, 536; Gridley v. College, 137 N. Y. 327, 330, 33 N. E. 321; Matter of Blewitt, 131 N. Y. 541, 30 N. E. 587. See, also, Dickerson v. Davis, 111 Ind. 433, 435, 436, 437, 438, and authorities cited.

It is insisted by appellees that this proceeding brought by appellant is a collateral attack on said judgment of the Clay Circuit Court, and that said judgment not being void, this action must fail. Treating this action as a direct attack on said judgment as claimed by appellant, he has no right to maintain it. The judgment of the Clay Circuit Court declaring said Reeves a person of unsound mind gave that court jurisdiction to appoint a guardian of the person and estate of said Reeves. $2546 R. S. 1881. When Cyrus Reeves was appointed such guardian, and executed his bond as required, and letters of guardianship issued, he was entitled to the custody of his ward, and such guardianship extended to all the ward's property in this State. $82512, 2551 R. S. 1881.

Even if the removal of said Reeves as guardian, and the appointment of Robinson as guardian in 1890, were void, the jurisdiction would remain in said court until ended by the death of said ward, or his return to sanity and the determination of that fact by the Clay Circuit Court under the provisions of $2773 Burns 1901, §2553 R. S. 1881.

Said judgment, not being void, fixed the status of the said Cassius E. Reeves in this State as a person of unsound mind, and incapable of managing his own estate, and as one under guardianship, and the same is conclusive until set aside. Talbot v. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3

Soules v. Robinson.

L. R. A. 254, 256; Leonard v. Leonard, 31 Mass. 280, 283, 284; Shroyer v. Richmond, 16 Ohio St. 455, 465, 466; Woerner's Am. Law of Guardianship, 446, 447; Heckman v. Adams, 50 Ohio St. 305, 315, 318, 34 N. E. 155.

Under said judgment, the Clay Circuit Court had exclusive jurisdiction of said guardianship until the same was vacated and set aside on appeal, or by said court in a proceeding brought for that purpose. Woerner's Am. Law of Guardianship, pp. 386, 446. So long as said judgment stands unrevoked, any proceeding under §§2544-2555 R. S. 1881, in any other county in the State, as to the unsoundness of mind of said Cassius E. Reeves, which results in either the appointment of a guardian, or a judgment that said Reeves was of sound mind, would be void, and would in no way affect the judgment of the Clay Circuit Court, or its jurisdiction of said guardianship. Cotton v. Wolf, 77 Ky. 238, 246; In re Griffith, 84 Cal. 107, 110, 23 Pac. 528, 24 Pac. 381; 1 Thornton & Blackledge, Administration of Estates, 44; Woerner's Amer. Law of Guardianship, p. 386. This is true because the judgment of the Clay Circuit Court, not being void, fixed the status of said Reeves as a person of unsound mind, and as being a person under guardianship, and that status can only be changed by the court which rendered said judgment in a proper proceeding. Moreover, there can not be two guardianships of the same person and property in this State at the same time.

It follows that the judgment in the proceeding in which appellant was appointed guardian of said Reeves, and also his appointment as such guardian, were void. He can not, therefore, maintain this action.

Judgment of the trial court affirmed.

158 102 f158 156

State, ex rel., v. Monroe County Council.

STATE OF INDIANA, EX REL. MORGAN, v. MONROE
COUNTY COUNCIL ET AL.

[No. 19,705. Filed February 20, 1902.]

COUNTIES.-County Council.-Mandamus.-A petition for a writ of
mandate by a county assessor to require the county council to
meet in special session and make an appropriation for the pay-
ment of a balance due him on his salary, allowed by the county
commissioners, and unpaid, is insufficient, where it was not
shown that an estimate had been filed by such officer as required
by the statute, or that the council had not in its discretion re-
duced the estimate and appropriation accordingly, such officer
being entitled by statute to $3 per day for the time actually em-
ployed in the discharge of his duties. pp. 102–105.
SAME.-County Council.-Allowance of Claim by County Commissioners
for Which no Appropriation is Made.-Under $25 of the county and
township reform law (Acts 1899, p. 343) the mere fact that the
board of county commissioners allowed a county assessor's claim
for compensation does not of itself bind the county beyond the
amount of money which had been previously appropriated by the
council for its payment. pp. 105, 106.

From Monroe Circuit Court; W. H. Martin, Judge.

Mandamus by State on relation of John D. Morgan to compel the county council of Monroe county to make an appropriation of a certain sum as compensation due relator as county assessor. From a judgment for defendants, relator appeals. Affirmed.

Seymour Riddle, for appellant.
Edwin Corr, for appellees.

JORDAN, C. J.-On April 5, 1901, the relator, John D. Morgan, instituted this action to obtain a mandamus against the Monroe county council, the auditor, and the board of commissioners of said county of Monroe. The petition alleges that on December 28, 1900, the county was indebted to the relator in the sum of $117, as a balance due on salary as county assessor of said Monroe county; that on the 26th day of November, 1900, he filed his claim for said amount. with the county auditor, itemized and sworn to as provided

State, ex rel., v. Monroe County Council.

by law. It is further charged that on said 28th day of December, 1900, the board of commissioners, while in session, duly allowed relator's claim, and that the same stands allowed and unpaid, and that no appeal has been taken from the decision of the board making said allowance. Prior to the commencement of this action, it is alleged in the petition that the relator demanded of the Monroe county council that it make an appropriation to pay said claim, and that said council has at all times refused, and still refuses, to make the necessary appropriation of money out of the county treasury, as provided by law, for the payment of said allowance or any part thereof; that there is now in the treasury of said county money liable for the payment of said claim as allowed, but that no funds have been appropriated for the payment thereof. The prayer of the petition is for a writ of mandate to compel the county council to make the necessary appropriation, and that Samuel Kerr, as auditor of said county, be commanded to convene said council in special session for the purpose of making said appropriation, etc. An alternative writ was issued, which commanded the county auditor to convene the county council in special session for the purpose of making an appropriation for the payment of relator's claim, and said council, when assembled, was also ordered by the writ to make an appropriation, or that said defendants, on failure to obey the command of said writ, appear on a day as fixed by the court and show cause why they should not comply with the court's mandate. The defendants demurred jointly and severally to the petition and alternative writ in question, for insufficiency of facts, and their demurrer was sustained, and, upon the relator refusing to plead further, judgment was rendered against him for costs. The ruling of the lower court on this demurrer is the error assigned in this appeal.

It is insisted by counsel for appellee that the petition is insufficient to entitle the relator to a writ of mandate, and therefore the ruling of the court on the demurrer was right.