Hindorff v. Sovereign Camp of the Woodmen of the World

McClain, J.

By its demurrer the defendant questioned the jurisdiction of the court of Jasper county to appoint plaintiff to be guardian of the estate of Elizabeth' Carson, and^ the right of said guardian to maintain an action 'on the certificate of which the ward was a beneficiary, the defendant association not being an incorporation having its principal place of business in this state, but doing business in the state and properly served with notice of the action by service on the State Auditor, the suffi *187 ciency of which is not questioned, provided action on 'the certificate could be maintained in this state.

The allegations of the petition as originally filed, so far as they bear upon the jurisdiction of the court in Jasper county to appoint plaintiff as the guardian of the estate of Elizabeth Carson and the authority of plaintiff as such guardian to maintain this action, were as follows: “First. That the plaintiff is duly appointed, qualified, commissioned and acting guardian of the property of Elizabeth Carson, who is now, and during all of the times herein mentioned has been, a nonresident alien, of unsound mind, residing in the kingdom of Great .Britain, and having both real property and personal property in Jasper county, Iowa, said appointment having been duly and regularly made-by this court and by virtue of sections 225 and 3202 of the Code of Iowa.” Subsequently an amendment to the petition was filed containing the following allegation: “That said Elizabeth Carson was supported by said Archibald Carson from the date of her birth to the time of his death; that said Elizabeth Carson became of unsound mind when she was about twelve years of age, and has ever since remained of unsound mind.”

I. Guardianship: domicile of insane infants: jurisdiction. The demurrer was made -applicable to the petition as amended, and we therefore have a case where the proper court of a county has appointed a guardian of one who aPPears by other averments in the petition to have died a resident of that county; such daughter having been of the age of twelve years when she became of unsound mind and having remained of unsound mind until such guardian was appointed. There is no question as to the proposition that the legal domicile of a minor child is that of the father, regardless of the actual place of residence of such child, and that a person of unsound mind is incapable of a voluntary change of domicile. Jenkins v. Clark, 71 Iowa, 552 ; In re Guardian of Benton, 92 Iowa, 202 ; *188 McIntire v. Bailey, 133 Iowa, 418 ; Washington County v. Polk County, 137 Iowa, 333 ; Minor, Conflict of Laws, pp. 3G, 54. The court, therefore, had authority to appoint plaintiff guardian of the estate of Elizabeth Carson with authority to bring any action in the state for the purpose of collecting debts due to her estate which she might have brought if she had been a person of sound mind and of full age domiciled in that county.

2. Same: pleadings:pleadings: • surplusage. It is only necessary for the plaintiff in bringing such an action to describe himself as guardian of the ward for ■whom he sues (Code, section 3224), and such allegation is sufficiently made in the petition as amended, The contention for appellant seems to be . that as the allegation m the original petition that plaintiff’s appointment was duly and regularly made by the court appointing him, “and by virtue of sections 225 and 3202” was not superseded by the amendment, plaintiff must be regarded as having been appointed guardian of a nonresident person of unsound mind, having property in the county, under said section 3202, and not as guardian of a person of unsound mind resident of the county under Code, section 3219. But we are clear that the statement as to the section of the Code under which the appointment was made is in the nature of surplusage and wholly immaterial. It can not affect the authority of the plaintiff that the court making the appointment had a wrong conception of the provisions of the statute under which the appointment was made. The appointment must be presumed to have been duly and regularly made under authority of law, and there is nothing in the petition as amended to indicate that it was not duly and regularly made under the authority to appoint a guardian for a resident of unsound mind, no matter what may have been the place of temporary residence of the person for whom such appointment was made.

*189

3. Mutual insurance: action upon certificate: jurisdiction.

*188 Plaintiff then was authorized to bring suit to collect *189 any debts due to tbe estate of bis ward wbicb sbe could bave instituted bad sbe been competent to sue. No question is made as to tbe-right to bring suit in J-asper county on tbe certificate of member- .... ° .. * . ship m defendant association of which tbe ward was a beneficiary. ' The suit was not in rem, but in personam, and tbe location of tbe beneficiary fund was wholly immaterial. Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138 (4 Sup. Ct. 364, 28 L. Ed. 379 ); Sulz v. Mutual Life Ass’n, 145 N. Y. 563 ( 40 N. E. 242 , 28 L. R. A. 379).

4. Same: appointment of guardian: collateral attack. Counsel for appellant protest that tbe only object of tbe defendant association in questioning tbe authority of tbe plaintiff to sue is to secure an adjudication wbicb will a payment to plaintiff of tbe amount due under the certificate and protect it against subsequent liability to make payment to any other claimant. Such protection will be afforded by tbe present judgment. A court having jurisdiction to determine tbe residence of tbe w-ard and to appoint plaintiff as guardian for such ward, as tbe ward is legally a resident of Jasper county, has in effect decided that under tbe facts it has jurisdiction to make such appointment, and, acting on this appointment, tbe plaintiff has instituted this -action. Defendant can not collaterally question tbe validity of plaintiff’s appointment on tbe ground that tbe facts did not justify it, and therefore is in no situation to resist tbe payment to plaintiff of tbe amount due under tbe certificate. Tbe judgment is affirmed.