OF THE STATE OF AllEANSAS, 449 Teim, 1857 Redmond, as guardian vs Anderson. REDMOT VS GUATMIAN Vs. ANDEllsOi.■% Wheie a wilt of certiorari has been issued from the Circuit Court to the olork of flip Prolvi to C ourt and the transcript, therein ordered to be certified to the Circuit Court, is filed therein, and the Court proceeds in the cause as if the writ had been regularly osturned, though the transcript shows no return, this Comt will presume, in favor of the regularity of the proceedings in the Court below: that the return has been omitted through neglect of the clerk in making out the transcript. In a proceeding by writ of certiorari the Court cannot look beyond the record certified. The presmnption is in favor of the regularity of the proceedings of Proba.te Courts—they being placed upon the footing of Superior Comts, (Borden et al. vs: State use, etc:, 6 Eng: 557 ) ; and nothing appearing in the record fn thP contrary, an order of sale and conveyance of a slave belonging to minms, will be presumed to have been authorized upon a sufficient showing: and for the benefit of the minors ppeol from MT cifiremt court of Monroc comity. The Hon. George W. Penzley, Circuit ;Fudge. Watkins & Gallagher, and Cummins & Garland for the appellant. The Circuit Court has jul'iscliction by writ of op rti eh rari, ( C ar-man vs, Crawford co: 6 "Eng. (110; 7 Eng. 54; ) though an appeal by from the judgment of the Probate Court—the petitioners having suffered substantial injustice, and having lost theii remedy by appeal without any ladies of their own, they being . minors. (15 Ark. 49 ; 1 Salk. 147; 2 Burr, 1040; 8 T. R. 544; 14 Ill. ) The Pr;Jbate Court find no jurisdiction. Moss vs Sandefur ex.. 15 Ark. 351: The attempt to procure 'a confirmation of the sale by the Probate Court, was a fraud on its face; and_ the Court consenting thereto acted beyond its jnrisdiction.
130 CASES IN `h1 -1.] SUPREME COURT Redmond, as guardian vs Anderson. January The act of the guardian did not affect the wards. 2 Verm. Mr. J ustice Scott delivered the opinion of the Court. Upon a sworn petition of the appellant to the Judge in vaca-aion, a writ of certiorari was ordered in this case, which seems to have 'been regularly issued by the clerk of the Circuit Court to the clerk of the Probate Court of Monroe county. From an endorsement upon the writ, it appears that the sheriff of Monroe county, on the 2tith of March, read it to one Edward A. Vance, in his pressence and hearing. ° There is nothing in this inconsistent with the idea that the writ, nevertheless, may have gone into the hands of the clerk of the Probate Count, to whom it was sent, to be returned into the Circuit Court by him, togethei with the transcript of the record and proceedings therein ordered to be certified into that Circuit Court. , The connection with the writ sent to him. A transcript of the pro-clerk's return does not, however, appear on the transcripi ceedings of the Probate Court, howe.ver, that seems to have been contemplated by the writ, does appear to have been afterwards certified by the clerk of the Probate Court as correct, and that transcript, by an endorsement thereon by the clerk of the Circuit Court, seems tu have been filed in the latter Court, but by whom it does not appear. The Circuit Court, however, appears to hafe proceeded afterwards, as if the writ of certiorari, ordered by the Judge in vacation, had gone ont, and had been regularly returned by the clerk to whom it was directed, and the proceedings of the Probate Court had thereby been removed into the Circuit Court: As there is nothing upon the face of the record to contradict this, we shall presume, in favor of the regularity of the pro-ceedlngs of the Circuit Court, that the certified transcript of the proceedings in the Probate Court was in response to the writ of certiorari; and that the formal return of the clerk to that et feet, which should have been endorsed upon the writ, has been omitted by neglect of the clerk of the Circuit Court, in the transcript sent up to this Court..
OF THE STATE OF ARKANSAS. 451 Term, 1857: Redmond. as guardian vs. Anderson. The order of the Probate Court, which is sought to be quashed by this proceeding, is in the following words, ;as it appears in the franscript of the proceedings of the Probate Court certified into the Circuit Court, in response, as we have above presumed, to the writ of certorari sent down, to wit; "And on this day conies Richmond F iheen, ns guardian of the heirs of A: Gr_ Evans, deceased, by 111=4 attovney, and presented his statement and petition showmg that, heretofore, to wit: on the 9th day of Feb. A ft 1849, -Harriet Evans. late Green, did sell and convey to Tames Anderson, a certain negro man named Joe, for the STIM of eight hundred dollars, of which he has paid the sum of four hundred and twenty dollars, 'Lear ing a balance due of three hundred and eighty dollars; that said Harriet L. Evans, late Green, has since departed this life, and that the said James Anilersim refuses tn pfry ovor the aforesaid sum of $380, -unless, by an order of this Court, the title to said negro is confirmed by the guardian of said heirs of A. G. Evans. Said petitioner, therefore, prays the Court to authorize him as guardian as aforesaid, to confiim the aforesaid sale and convey ance as above specified. Tt is, therefore, considered and ordered by the Court that the said R. F. Green. as guardian aforesaid, be, and he is hereby authorized and empowered as ginirdin aforesaid, to sell rind eonyey, and pass deed to the said James Anderson for the said negro man Toe." In addition to the order thus copied, the clerk certified that "there was a petition in writing filed at the timc of said application—that the same has heel, lost, as it cannot now be found in my office after dilig,ent search therefor made,"—and that these proceedings So transcribed, and the petition thus accounted for, constitute the entire proceedings in the premises in the Probate Court. The Circuit Court, after several continuances of the cause, filially heard it, and affirming the proceedings of the Probate Court, the petitioner below appealed to this Court. There ale several matters set out in the petition for the writ of certiorari, which although they might attract the ear of the Chancellor, in an application to him for relief upon the ground
452 CASES TNTIIE SUPREME COURT Redmond, as guardian vs: Andeison. January that the infants in question have been defrauded, can cot no figure in the ease before us, on proceeding by certiorari, and, therefore, need not be stated. The ease presented to the Circuit Court, and which has been brought here by appeal, presents no point of difficulty. The record of the Probate Court, beyond which the Circuit Court could not look in this pioceed-ing, shows a case, within its jurisdiction, under the provision of the 16th section of the statute of "Guardians and Wards," (Dig-ch. 80, p. 566), and furnishes satisfactory grounds upon which to presume that it was lawfully exercised. As to presumption in favor of regularity of these proceedings—Probate Courts are placed upon the footing of Superior Courts by the case of Borden et al. VS, The State, use, etc., ( 6 Eng. R., p. 551-'2.1 And when tested by that standard, the order in question \ is not to be impeached. The order stands alone, preceded by the petition in writing, and is assailed by- nothing brought upon the records of the Probate Court by bin of exceptions or otherwise, Under such circumstances, as the Court had jurisdiction, it is to Ir! presumed that the sale authorized was upon a sufficient showing, and was for the benefit of the minors ; and that their rights in the premises we-re not sacrifictud, bat gnat dud and pi otected —it being: the peculiar province of that Court to take care of minors and their property, and hold guardians t strict accountability. The judgment must, necessarily, therefore, be affirmed, without any regard to the true merits of the case, of which, in this proceeding, and upon the record, we can, of course, have no knowledge. Absent, the Hon. Thomas B. Hanly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.