Wilson v. Roach
Before: Heydenfeldt, Murray
Synopsis
Certiorari to the Fifth Judicial District.
This was a bill in equity, filed by Daniel Wilson and wife, in their own right, and Wilson as guardian, ad litem, of the minor heirs of Jose Maria Sanchez.
The bill was filed against Roach, guardian of Wilson’s wife and of the said minor heirs, under an appointment of the Probate Court of Monterey County, and against Josiah Merritt, the Probate Judge of Monterey County, and the Sheriff and Coroner of Monterey County, and charged Roach with embezzlement and fraudulent appropriation of the funds of his wards, to the amount of $73,000, and charged the other defendants with confederating with him.
The bill was for an account, and prayed an injunction, and the appointment of a receiver to take the property out of the hands of Roach, and an elisor to execute the process in the cause.
The Court granted the injunction, and appointed Lewis Belcher receiver, and Samuel H. Brooks elisor. The receiver made a report, supported by affidavits of witnesses, that he, as receiver, had applied to Roach for a delivery to him of the property of the infants, in pursuance of the order appointing * him receiver; which order he then read [363] to Roach, and that Roach' peremptorily refused.
The Court then ordered the elisor to attach Roach, on the charge of having committed a contempt of the Court, in disobeying its order, and to hold him in custody without bail, and to have him in chambers to answer the charge.
Roach was arrested in Monterey County, and being brought before the Judge, in chambers, answered as follows: “That his'failure to comply with the said order was not designed to be in contempt of the authority of the Court in which this action is brought, or of the order aforesaid of the Judge thereof, for which said Court and Judge he feels all proper respect; that he declined obedience to the said order for the following reasons, which he respectfully prays may be fully considered, and deemed sufficient to acquit this respondent, and entitle him to be dismissed;
‘ ‘ He was advised by counsel that the order of appointment of a receiver, and the further order of the 3d August, 1854, were illegal, and that he was not bound to obey the same, on the following grounds:
“1st. That the Probate Court of the County of Monterey, in the State aforesaid, had acquired jurisdiction of the subject matter of the person and estate of the minor heirs of whom this respondent is the guardian, and that such jurisdiction by said Probate Court of the county where the said wards resided, and where their property is situate, was exclusive, and that no Court other than the said Probate Court, or the immediate appellate Court (the Third Judicial District and the Supreme Court of this State), could legally malee such order.
Mr. Ch. J. Murray delivered the opinion of the Court.
Mr. J. Heydenfeldt concurred. The errors assigned in this case are the appointment of a receiver, and the attachment issued against the appellant, Eoach, for refusing to comply with the order of the District Court, commanding him to pay over moneys held by him, belonging to certain minors.
The facts set forth in the bill render the case one eminently of chancery jurisdiction.
The District Courts of this State have the same control over the persons of minors, as well as their estates, that the Courts of Chancery in England possess.
This jurisdiction is conferred by the Constitution, and cannot be divested by any legislative enactment.
The books are full of cases in which the authority has been exercised upon less cause than is shown by the-present case.
[367]The claim of exclusive original jurisdiction in the Courts of Probate over this subject is unfounded. Chancery may at any time interfere, and remove the proceedings before it. All the proceedings in this case are entirely consistent with the power and jurisdiction of the Chancellor,
*With regard to the process, we are of opinion that [367] there is no error. There may have been some irregularity, but not sufficient to vitiate the orders of the Court, or divest it of its jurisdiction.
The answer of the appellant upon the attachment, admits the service of the order .of the 3d of August, and the whole record shows that no process was issued until after the bill had been filed and the cause was regularly in Court.
The objection that the elisor was improperly appointed is not well taken. The Sheriff and Coroner had been made defendants by an amended or supplemental bill, which the plaintiffs had the right to file without leave, before answer. In the event of their disqualification, the Court had power to appoint an elisor, and the record does not show that the person in this case was not a resident of the county.
Even if such authority was not conferred by statute, the Court, by virtue of its original jurisdiction-, had the power to appoint a special officer to execute its process.
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