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any estate of the ward that may be found within the district, and also with respect to the person of the ward if he shall come to reside therein, as are prescribed to any other guardian appointed by force of this chapter."

Morton E. Stevens, Claypool, Kellum & Cowles (Edward E. Cushman, of counsel), for plaintiffs in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge (after making the foregoing statement, delivered the opinion of the court).

Under the foregoing state of facts, did the commissioner have any jurisdiction to make an order appointing Badger guardian of said White? Did the court have any jurisdiction to hear and determine the case? The jurisdiction of the commissioner as ex officio probate judge to appoint guardians for insane and incompetent persons is derived from the statute, and in order to obtain such jurisdiction it must affirmatively appear that the essential provisions of the statute were complied with. The court below upon the trial of this action proceeded on the ground that the statutes had been complied with in all essential particulars, and that the judgment of the commissioner adjudging White to be insane and appointing Badger as his guardian is conclusive, and cannot be collaterally attacked. That the commissioner had jurisdiction over the subject-matter of the petition of Long is unquestioned. Did he have jurisdiction over the person of White or his property? It is manifest that section 723 of the Alaska Code refers only to the regulation of proceedings had in the courts after jurisdiction has been regularly acquired, and applies only where the course of proceedings is not specially pointed out in the Code. Section 888 simply provides for the appointment of guardians of minors and other persons, either residents or nonresidents, who may have property within the district where the proceedings are instituted, but does not attempt to designate the course of procedure in such cases; that is provided for in other sections. The provisions of sections 911 and 912 apply only to the appointment of guardians for persons who reside without the district, having estates within the district where the proceedings are instituted.

From a careful examination of the various sections of the Code of Alaska, it plainly appears that the validity of the proceedings had in the present case before the commissioner must be determined by the provisions of sections 895 and 896. The commissioner proceeded upon the theory that White was a resident of Fairbanks Precinct, and the District Court, in its opinion overruling the demurrer, said: "Upon the face of the probate record, it is my judgment that White was a legal resident of Fairbanks Precinct when these proceedings were begun, and that the court had jurisdiction to enter the judgment, and further held that the proceedings were regular, and upon their face show "that the probate court had jurisdiction." The mere fact that the commissioner had jurisdiction in such cases to receive and act upon the petition does not by any means establish the proposition that he acted, after receiving the petition, in compliance with

the provisions of the statute, and this is the principal question to be determined by this court.

A commissioner's court is one of limited jurisdiction, and compliance with the requirements of the law must be fully shown. It is undoubtedly true, as claimed by the defendant in error in the court below, that when jurisdiction is established, all presumptions of law and fact are in favor of the judgment. No authorities need be cited on this well-settled proposition. But the point here is, was the jurisdiction of the court established?

Without stopping to criticise the peculiar statments set forth in the petition of Long, and conceding, for the purpose of this opinion, that, defective as it is in almost every essential particular, it was sufficient to authorize the commissioner to proceed according to law to give notice to White of the pendency of the proceedings, and of the time and place when a hearing would be had thereon, was any such notice given? The suggestion is made on behalf of the defendant in error that section 896 does not provide what steps shall be taken to serve the notice on the person supposed or believed by the petitioner to be insane. The statute must receive a sensible construction. The statute says that "the commissioner shall cause notice to be given to the supposed insane person of the time and place appointed for hearing the case." If White, the alleged insane or incompetent person, resided in Fairbanks Precinct, does not this language mean that the notice should be personally served upon the individual to be affected thereby? The language of section 896 is not susceptible of any other construction. There was no notice given to White in compliance with the provisions of the statute under which the commissioner acted. The "public notice" of the time and place of the hearing in a newspaper, or by posting a similar notice in three public places in the town of Fairbanks, was not such a notice as the statute requires. White did not appear at the hearing. The proceedings then had were ex parte, without authority of law, and void. Chase v. Hathaway, 14 Mass. 222; Eddy v. Eddy, 15 Ill. 386; Smith v. Burlingame, 4 Mason, 121, Fed. Cas. No. 13,017; North v. Joslin, 59 Mich. 624, 626, 26 N. W. 810; Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 23 L. R. A. 737, 45 Am. St. Rep. 912; Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206; Stewart v. Taylor (Ky.) 63 S. W. 783; Martin v. Motsinger, 130 Ind. 555, 558, 30 N. E. 523; Woerner, Am. Law of Guardianship, pp. 392, 393, 445.

* * *

In Smith v. Burlingame, supra, which was a proceeding under a statute which authorized the courts of probate "to appoint guardians of all persons who are delirious, or who, for want of discretion in managing their estates, are likely to bring themselves and families to want and misery," one Cady was appointed guardian by the court of probate, but no notice was given to the plaintiff previous to such appointment, and the objection was made that the want of notice was fatal. Story, Circuit Justice, said:

"My opinion is that the objection is fatal. The courts of probate have no right to put a person under guardianship, as unfit to manage her affairs, without notice to the party and an adjudication on the facts; and until such

146 F.-30

adjudication no letters of guardianship can legally be issued. The case of Chase v. Hathaway, 14 Mass. 222, is directly in point, and with that case I entirely concur."

In Evans v. Johnson, supra, the court elaborately discussed the question as to the necessity of giving notice to the alleged insane person, and other questions applicable to the present case, and upon all the points cited numerous authorities. In answering the suggestion made that the notice to an insane man will do him no good, the court said:

"The reply is that his insanity is the very question to be tried, and he the only party interested in the issue. In many cases, if notice be given him, he will be prompt to attend, and in person be the unanswerable witness of his sanity."

The court further said:

"Even though the statute be silent regarding notice,

yet the com

mon law steps in and requires it. * * * A statute will not be construed to authorize proceedings affecting a man's person or property without notice. It does not dispense with notice. * If the case were one of mere error or irregularity, it might be said that the order was good against collateral attack, and must be reversed by a direct proceeding; but the question is one of jurisdiction-a want of authority to make the order for want of jurisdiction over the person to be affected. * * * A sentence of the court without hearing the party, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to any respect in any other tribunal. Jurisdiction is indispensable to the validity of all judicial proceedings. Jurisdiction of the person as well as the subject-matter are prerequisites, and must exist, before a court can render a valid judgment or decree; and if either of these is wanting, all the proceedings are void. The county court being a court of limited jurisdiction, it must appear, not only that it had jurisdiction as to the subject-matter, but also over the person by service of process or notice. *** When we say there must be jurisdiction, we mean both that the matter and the person to be affected must be within the jurisdiction of the court by service of notice upon him."

In Stewart v. Taylor, supra, the court said:

"Although the statute is silent upon the subject of notice, we cannot believe that the Legislature ever intended that one should be declared a lunatic, and have his property and person put in charge of another, without either being present in court, with an opportunity to defend the proceeding, or without having due notice thereof, and thus have an opportunity to appear and defend. Even if the Legislature had so intended, a judgment rendered in the proceeding would not be valid unless the defendant in the writ had been notified by process of the court of its pendency, or was present at the trial, with an opportunity to defend. To adjudge him to be of unsound mind without notice or his personal appearance at the trial would be to deprive him of important and valuable rights without being heard."

In Martin v. Motsinger, supra, the court said:

"While the statute does not in terms provide for notice, the proceedings are of such a character that they cannot be ex parte and be valid. If the statute was to be construed as authorizing proceedings of an ex parte character, it would be, to that extent, in conflict with the Constitution of the United States, and void."

Perhaps the most illustrative case bearing upon the injustice that may be done by a judicial proceeding without notice is that of Scott v. McNeal, 154 U. S. 34, 40, 48, 14 Sup. Ct. 1108, 38 L. Ed. 896.

This was a suit in ejectment. The facts showed that in March, 1881, the plaintiff mysteriously disappeared, and nothing was heard of him, and he was believed to be dead until July, 1891, when he returned. In 1888, on the presumption that he was dead, letters of administration were granted, and his estate was administered upon and the land in question sold. When he returned he sued the purchaser for the land. The courts of the state of Washington held that the proceedings in administration were conclusive-that he was dead--and directed a verdict for the defendant. The case was appealed to the Supreme Court of the United States, where the judgment below was reversed. Mr. Justice Gray, in delivering the opinion of the court, after citing the fourteenth article of amendment to the Constitution of the United States, said:

"These prohibitions extend to all acts of the state, whether through its legislative, its executive, or its judicial authorities. * * No judgment of a court is due process of law if rendered without jurisdiction in the court or without notice to the party. The words 'due process of law,' when applied to judicial proceedings, as was said by Mr. Justice Field, speaking for this court, 'mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity there must be a tribunal competent by its Constitution-that is, by the law of its creation-to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state or his voluntary appearance.' Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. Ed. 565."

See, also, Hamilton v. Brown, 161 U. S. 256, 267, 16 Sup. Ct. 585, 40 L. Ed. 691; New Orleans Water Works v. New Orleans, 164 U. S. 471, 480, 17 Sup. Ct. 161, 41 L. Ed. 518; Chicago, B. & Q. R. Co. v. Chicago, 166 Ū. S. 226, 234, 17 Sup. Ct. 581, 41 L. Ed. 978. The judgment of the District Court is reversed, and the action dismissed, without prejudice.

LINDEBERG et al. v. HOWARD et al.

(Circuit Court of Appeals, Ninth Circuit. June 20, 1906.)

No. 1,219.


In an action on an injunction bond given in a court in the territory of Alaska, attorney's fees expended in obtaining a dissolution of the injunction do not constitute a proper element of damage.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, § 597.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

This is an action to recover damages upon an undertaking for an interlocutory injunction in the suit of Lindeberg et al. v. Howard et al. The bond in question was given to defendants in error for the purpose of indemnifying them from loss and damage, if any resulted, from the procuring of the temporary injunction restraining them from discharging or causing to flow into

the Moonlight Springs mud, dirt, tailings, or muddy water, or from in any manner polluting the waters of said springs or creek. In the complaint it is alleged that the defendants in error were, during the winter of 1902 and 1903, engaged in taking out dumps of pay dirt and gravel from the Grant placer mining claim, under a lay thereon from the Pacific Coal & Transportation Company, which expired on June 1, 1903; that at the time the restraining order was served upon the defendants in error they were compelled to cease mining operations by reason thereof; that defendants in error then had out of said Grant placer mining claim and ready to wash out and sluice the gold therefrom dumps of pay dirt and gravel of the value of $2,500. The restraining order was issued May 18, 1903, and the lay expired on June 15th, following. It is alleged that the said restraining order was wrongfully caused to be issued by the plaintiffs in error. The conditions of the injunction bond are: "If the said plaintiffs shall pay all costs and disbursements that may be decreed to the said defendants, their agents, servants, and employés, and such damages, not exceeding the sum of $2,500, as they, or any of them, may sustain by reason of said injunction if the same be wrongful, or without sufficient cause, then this obligation shall be void; otherwise it shall remain in full force and effect." The rule to show cause why the injunction should not issue was set for the 19th, and was then heard and taken under advisement, and, on the 9th of June it was dissolved, and the court refused to issue an injunction pendente lite. When the restraining order was issued the defendants in error in this action were using the water caused by the melting snow from the watershed of Anvil Mountain, and the supply of said water was then ample to sluice said dumps and extract the gold therefrom, but at the time of the dissolution of the restraining order there was no water for said purpose, nor was there during the year 1903; that during the year 1903, the said dumps were wasted and destroyed, much of the dirt caving back into the shafts and drifts on said mine, and that, by reason of said restraining order and the loss of said dumps, the plaintiffs claimed damages; they also claimed damages for 22 days' loss of time resulting from said restraining order, and also claimed damages for reasonable attorney's fees incurred by them in defending against said restraining order, and in procuring its dissolution.

The court charged the jury, among other things, as follows: "If you find from the evidence that the plaintiffs had a dump or several dumps of pay dirt and gravel on the Grant placer mining claim * * * during the spring of 1903, and that they were enjoined at the suit of the defendants when engaged in washing out and extracting the gold therefrom, and you further find from the evidence that plaintiffs could have sluiced out said dumps and extracted the gold therefrom between the date when plaintiffs were enjoined from so doing in effect, and the date of the dissolution of the restraining order, and that thereafter said dumps and their values were wholly or partially lost to the plaintiffs as the proximate result of said restraining order, then I instruct you to find for the plaintiffs in such sum as you may find from the evidence plaintiffs were damaged thereby. * I further instruct you that the reasonable value of attorney's fees contracted by plaintiffs in moving to dissolve said restraining order is, under the statute of Alaska relating to injunction bonds, an element of damage to be considered by you, and if you find from the evidence that plaintiffs employed an attorney for the purpose of moving to dissolve said restraining order, that you should also find for the plaintiffs in such sum as you may find from the evidence was a reasonable attorney fee for such purpose. * * The jury are further instructed that the defendants in this action are not responsible for any of the acts of third parties, not in privity with them, who may have sluiced up said dumps for pay gravel, or any parts of the same, and appropriated the proceeds thereof. The jury are further instructed that the plaintiffs are not entitled to compensation for the loss of said dumps of pay gravel or the loss of any part thereof, which was not directly and proximately caused by the issuance and continuance in force of the restraining order mentioned in the complaint. The jury are further instructed that if the disappearance or destruction of the plaintiffs' dumps was caused by the negligence or inat

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