McLain v. Brewington

McCULLOCH, C. J. This is a controversy over the custody of two infant orphans under the age of fourteen years, residing in Fultlon County, and also over the appointment of a guardian for said infants. Appellant is the grandfather of the two children on the paternal side, and Hilda Brewington, one of the appellees, is the grandmother of the children on the maternal side. In June, 1918, appellant filed his application with the clerk of the prohate court of Fulton County for letters of guardianship of the persons and estates of said infants, and upon the execution of a bond the clerk issued the letters. The children were then living with Mrs. Brewington, and on July 3, 1918, appellant instituted an action in the chancery court against Mrs. Brewington for the recovery of the custody of the children. During the pendency of the action in the chancery court Mrs. Brewington appeared in the probate court of Fulton County at the first term thereof after the issuance of letters of guardianship to' appellant and filed therein a remonstrance against the confirmatlion of the action of the clerk.in.granting said letters. She alleged that appellant was not a proper person to whom letters of guardianship over the persons and estate of said infants should be granted, and the court sustained the remonstrance and refused to confirm the action of the clerk. The letters of guardianship issued to appellant were revoked and appellee J. M. Short was appointed by the probate court as guardian of said infants. Appellant prosecuted an appeal to the circuit court from the judgment of the probate court. Appellees appeared in the circuitl court and moved to transfer the proceedings therein on appeal to the chancery court, and the order of transfer was made without objection. When the chancery court convened, the two proceedings, that is to say, the appeal from the judgment of the probate court and the action instituted in the chancery court by appellant against Mrs. Brewington, were consolidated by consent, and progressed to a final decree in favor of the appellees. The first question presented is whether or not the chancery court had jurisdiction to hear and determine the appeal from the probate court. We are clearly, of the opinion that the chancery court had no such jurisdiction. The Constitution (art. VII, § 34) confers exclusive jurisdiction upon probatle courts “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates;” and there is also conferred a right of appeal to the circuit courts from judgments and orders of probate courtls. There is no right of appeal to the chancery court. The statute authorizing transfers of causes from the circuit to the chancery court, or vice versa, applies only to those actions which originate in one or the other of those courts (Kirby’s Digest, § § 5991, 5994, 5995), and does not confer authority for the transfer of a cause appealed to the circuit court from one of the inferior courts. Jackson v. Gorman, 70 Ark. 88; McCracken v. McBee, 96 Ark. 251; Brownfield v. Dudley E. Jones Co., 98 Ark. 495. There was no objection t|o the transfer of the cause, but consent can not confer jurisdiction of the subject-matter of the proceedings where such jurisdiction could not, under any circumstances, otherwise exist. Price v. Madison County Bank, 90 Ark. 195. It does not follow, however, that the whole of the decree is void, or even erroneous, for the chancery court had jurisdiction of the action for the custody of the children. The cause was heard on oral testimony brought upon the record by bill of exceptions. The letters of guardianship issued tlo appellant by the clerk of the probate court were revoked by that court and another person was substituted as guardian who left the children in the custody of their grandmother, Mrs. Brewington. The court did not err in refusing to disturb that custody by transferring it to appellant during the pendency of the contest over the guardianship. The decree of the chancery court to that extent will be affirmed. The decree so far as ill relates to the disposition of the appeal from the probate court is reversed and the cause is remanded with directions to remand it to the circuit court for further proceedings.