Mississippi Supreme Court, 1932

Yarborough v. Coulter

Mississippi Supreme Court · Decided January 11, 1932 · Smith

138 So. 591; 162 Miss. 50; 1932 Miss. LEXIS 104 (Southern Reporter)

Counsel

Geo. H. Banks, of Newton, for appellant. Petition must show names of parents or guardian of minor or state that they are unknown. Section 7252 of Mississippi Code, 1930. A petition for commitment of child must show existence of conditions specified in the statute. Holden v. Smith, 100 So. 127 . The petition and order under which this minor was committed to said institution are wholly void and should be held of no effect whatever. Section 2982 of the Code of 1930 provides on definite terms how process shall be served if the defendant be an unmarried infant. The court must hear before it can adjudge, and it must give an opportunity to persons affected by the judgment to be heard before it is rendered, or else the judgment does not affect them. Sinquefield v. Valentine, 159 Miss. 144 . E.R. Holmes, Jr., Assistant Attorney-General, for the state. It is clear that the statute only requires service upon "either parent or guardian of said child" residing in this state. Section 7252, Code 1930. There can be only three kinds of guardians: (1) Natural guardians who are the father and mother of a minor child; (2) testamentary guardians, as provided for in section 1866; and (3) a guardian appointed by the court as provided in section 1868. Chapter 34, Code of 1930. So far as the strict construction of the statute is concerned, the next of kin, who are not legal guardians of a minor child, are not necessary parties. Section 7252, Code of 1930. Argued orally by Geo. H. Banks, for appellant.

Opinion of the Court

Smith, C. J.,

delivered the opinion of the court.

This is a habeas corpus proceeding by the appellant, a minor, by a next friend, in which he seeks to be released from the custody of the appellee, who is superintendent of1 the Mississippi Industrial and Training School, to whose custody he was committed by a circuit judge. The appellant has neither father, mother, nor legally appointed guardian. The petition for his committal to appellee’s custody was filed by a sheriff, to which the appellant and L. TI. Yarborough, who was ■alleged to have “the custody and tuition of the minor defendant, Thurmond Yarborough,” were made defendants. No process was served on either the appellant or L. H. Yarborough. The judgment of committal recites that the cause came on to he heard, “and it appearing to the court that process of service has been waived by L. H. Yarborough, appearance entered and consent for hearing of said petition at any time and place, that said Thurmond Yarborough is delinquent,” etc.

In determining, under section 7251, Code of 1930, whether a minor shall be committed to the Mississippi Industrial and Training School, a circuit judge or chancellor acts as a court of special and limited jurisdiction, and therefore the record must disclose all necessary jurisdictional facts.

*53 Section 7252 of the Code provides that the petition for the committal of a minor to the Mississippi Industrial and Training School shall set forth “the names and addresses of its parents or guardian if known, and if not known, stating such fact,” who, if such there he, must he summoned to appear “and show cause, if any, why such child should not be adjudged to be a delinquent.” This requirement of the statute was not here complied with.

We are not called on to determine what would be the effect of this omission in the petition had the judgment recited the proper jurisdictional facts.

We have left out of view the fact that no process was served on the appellant himself, which seems not to be required by the statute, and express no opinion whatever thereon. The decree of the court below will be reversed, and the appellant will be discharged from the custody of the appellee.

So ordered.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.