# Murphree v. Hanson

> Supreme Court of Alabama · May 11, 1916 · 197 Ala. 246

URL: https://www.frixlaw.com/law-library/cases/7368727

## Case

- **Full name:** Murphree v. Hanson
- **Court:** Supreme Court of Alabama
- **Decided:** May 11, 1916
- **Citations:** 197 Ala. 246; 72 So. 433; 1916 Ala. LEXIS 52
- **Precedential status:** Published
- **Opinion:** Dissent by McClellan
- **Judges:** Anderson, Gardner, Mayfield, McClellan, Sayre, Somerville, Thomas
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7368727

## Opinion text

McCLELLAN, j.
(dissenting). — This is a petition for habeas corpus to effect the delivery to the petitioner of an infant, without parents,, now in the custody of the respondents, who have the charge and care of the child under the authority of the American Trust & Savings Bank, an Alabama corporation, that was regularly appointed the guardian of the child’s person and estate by the probate court of Jefferson county. The decree of the probate court proceeds from an indubitable jurisdiction in the premises. The custody of this child is under, and alone attributable to, and must be protected by, the decree constituting the bank the guardian of the child. If the decree is not void, so that its nullity may be disclosed even in a collateral proceeding such as this is (Brinster v. Compton, 68 Ala. 299 ), then habeas corpus cannot avail to disturb the custody, a status established by the probate court. Code, § 7032, puts that question beyond all doubt. It reads: “No court, chancellor, or judge, on the return of a writ of habeas corpus, has authority to inquire into the regularity or justice of any order, judgment, decree, or process of any court legally constituted. * * *”
*261 Not even a chancellor can inquire, on a hearing of a petition for habeas corpus, into the regularity or justice of an order, decree, judgment or any process made, rendered, or issued by a court of competent jurisdiction. If the custody of the child is ill-advised, the remedy, provided by statute, is in the court appointing the trust company the guardian of the child. That decree, entered under a full jurisdiction to so pronounce, cannot be soundly subverted or annulled in any respect by or in a purely collateral attack upon a status established by it. This result from elementary consideration. In the absence of a living parent, the custody of a child is with and must be committed to the regularly appointed guardian. — Code, § 4339. See Code, § 4338, where the minor over 14 years of age is empowered to nominate the guardian. In New York there may be one guardian of the estate of the minor and another of the person. That is because positive law has so prescribed. Section 2821 of the New York Code of Civil Procedure, 3 Stover’s Anno. Code, provides:
“The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons.”
This statutory regulation accounts for the ruling made in Matter of Buckler, 96 App. Div. 397 , 89 N. Y. Supp. 206 . We have no such statute; hence it is a mistake to accept as any measure of authority the decision of the New York court in the Matter of Buckler, supra, cited and relied on in the opinion of the majority.
The trust company which the probate court of Jefferson county constituted the guardian of this parentless infant was authorized and empowered by law to be appointed guardian of this infant. — Acts 1900-01, p. 1396 et seq., § 4, p. 1397; Code, § 3518. Surely, in view of the express charter powers conferred on the institution appointed by the probate court to be the guardian of this infant, it cannot be soundly held that the probate court was not authorized to appoint the corporation a guardian, thereby necessarily vesting in it the right to the custody of the child, unless it can be affirmed that the Legislature is powerless to authorize the creation of trust companies, or. to create trust companies, that may serve as guardians of the persons and estates of infants. There is no such restraint upon the legislative power written in, or to be implied from, our organic law. It is, as I view it, a very serious matter to affirm, without constitu *262 tional warrant therefor, that the Legislature is powerless to create corporations to do a trust business and to serve as guardians of the persons of parentless minors, resident of this state.
In my opinion the relief sought through the writ of habeas corpus was correctly denied, upon the ground indicated.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7368727. Public record. Not legal advice.