Posey v. Eaton.

pleadings before us. We think it certain it was not intended to be made by the pleader who drew the bill, and it is evident he meant only to allege the fact that he was not a party, so that an account could be had of the personalty in his hands, and the correctness of his administration looked into on an account, as the matter of complaint in this bill. No charge is made that Brown, who was appointed by the county court of Hamilton county, the residence of the intestate, was not the legal administrator, and properly the then representative of the estate. We need not definitely decide the question argued. We only say, that on the facts shown, we do not see how it can be maintained that his appointment is a nullity.

The case of Johnson v. Gaines, 1 Cold., 288, giv ing the same conclusive effect to the proceedings of the county court in matters of probate and administration as to the proceedings of other superior courts, and that if the judgment is valid on its face, it must stand until revoked by direct proceedings for that purpose, would seem to be as conclusive in this case in favor of the action of the county court of Hamilton, as any other decree; and while it stands, would conclusively show in all collateral proceedings, that the said Brown was administrator. It might be the court ought not to have granted the letters, while Ragan's administration in Davidson county was unrevoked, but this was but an error in the judgment at most. The county court of Hamilton was the proper court having jurisdiction to appoint the administrator, it being the county of the residence of the intestate; and this

Posey v. Eaton.

court would be slow to hold a jurisdiction legally conferred was void, because another court had wrongfully, without any legal authority, exercised the jurisdiction. Be this as it may, the question is not so made in the bill as to require its definite settlement in this case.

We but add, that if Brown is to be recognized as an administrator by reason of his appointment by the county court of Hamilton-and no allegation is made in the bill controverting this-then it could not be urged in this proceeding, that the sale was invalid, because no special account was had of a former administration. The decree reciting the fact of exhaustion of assets, it assets, it would be presumed all

proper sources of inquiry had been resorted to in ascertaining this fact by the court, and we could not correct his decree in a court of coordinate jurisdiction, or in the same court, by showing the conclusion was not warranted by the facts. This would be to review the action of the chancellor, and reverse it in his own court, by another bill.

were

The main question relied on to sustain the decree of the chancellor is, that the defendants to that bill never regularly made parties-were not served with process. The principle is beyond question, that if the parties were not before the court, the decree would be void.

We have the recitals of the decree or decrees of the court, stating the fact that all were before the court, either by service of process on them personally or by publication. We have the next best evidence,

Posey v. Eaton.

if not conclusive evidence of the fact, in the entries regularly made at the time on the rule docket, a docket required to be kept by law, ard to show the fact of the return made on the process by the officer to whom issued. From this it appears the sheriff or his deputy returned the subpona executed on all the parties within a very short time after its issuance. The subpoena itself being lost, this as secondary evidence is the next best evidence that could be resorted to for the ascertainment of what the action of the officer was. It is an official act, done in the regular performance of his legal duties, and therefore has a presumption of a very high character in its favor. These things, in connection with the parol proof in the record, make it satisfactory, that the officer under his oath returned the process executed on all the parties, except the non-resident, and the rule docket shows publication as to this party.

In reply to all this, we have only the depositions of the parties themselves, that they were not served, and that about twelve years after the time of the transaction. In the case of Tatum v. Curtis, 9 Baxt., 361, it was held by this court, that it would not do to set aside the judgments of courts and the official acts of officers, upon the simple denial of service by the party himself, unsupported. We find no real or substantial support for these parties in this record, and think the weight of all the evidence decidedly preponderates against what they have said.

This disposes of all the questions raised by the pleadings as grounds for attacking the validity of the

Ridge. Insurance Company.

sale. Other questions have been argued, which are not raised by allegation, and need. not be decided. The question of appointment of guardian ad litem for the minors, without giving their names, is one question so argued. We need but say, that while this has been said to render an appointment void in the case reported in 1 Heis., 730, citing 1 Swan, 484, this was an inadvertent remark of the learned judge, the facts not raising the question in the 1 Heiskell case, as there was no evidence of service of process at all, and the same may be said of the case in Swan.

The result is, that there is no sufficient ground on which to declare the proceedings in the chancery sale void and the decree of the court below will be reversed, and the bill dismissed with costs of this and the court below.

THOMAS RIDGE v. THE SCOTTISH COMMERCIAL INSURANCE COMPANY.

INSURANCE. Forfeiture. Vacancy. The insured cannot recover upon a policy of insurance which provides that should the premises become vacant, the policy should be forfeited, where the loss occurred while the premises were temporarily vacant.

FROM KNOX.

Appeal from the Chancery Court at Knoxville. W. B. STALEY, Ch.

Ridge v. Insurance Company.

HENDERSON & JOUROLMAN for complainant.

T. S. WEBB for defendant.

MCFARLAND, J., delivered the opinion of the court.

This bill was brought to recover upon a fire policy. Among other conditions is the following:

"If the within mentioned premises shall * become vacant or unoccupied, * * * without the assent of the company endorsed hereon, * * then, and in every such case, this policy shall be void."

The policy was effected the 15th of August, 1879, for three ears. The house is described as complainant's "one-story and a half brick, shingle roofed building, occupied as a dwelling," etc. The bill charges that it was burned on the 14th of October, of the same year, and that the company has interposed only one objection to the payment of the loss, and that is, "that the house was vacant at the time it was burned." "The facts with regard to that," says the bill, are as follows: "Said building was at the time it was insured, leased by complainant to a tenant then in possession. At the time of its loss as aforesaid, complainant was absent in Europe on a visit. He left said building in the charge of a capable, prompt, energetic and entirely trustworthy agent, with instructions and full power to keep a tenant in it. Complainant is informed and believes and so avers, that some few days, perhaps four or five days before the day on which said house was burnt as aforesaid, complainant's tenant left said premises and the same became tempo