SCHUSTER et al.
Rehearing Denied March 17, 1953.
[75 Ariz. 21] Mangum & Flick, of Flagestaff, for appellants.
Earl Platt, of St. Johns, Guy Axline, of Holbrook, Gilbert & Gilbert, of Santa Fe, N. M., for appellee.
THOMAS, Superior Court Judge.
Generally this proceeding presents an appeal from an order of the trial court refusing to revoke its judgment theretofore entered dissolving a voluntary irrevocable trust. It was asserted that the order of revocation was made without the consent of infant beneficiaries under the trust, and made at a time when the court did not have jurisdiction over the persons of the infant beneficiaries who were alleged to have been nonresidents of the state at the time the order of dissolution was entered.
The factual situation out of which these proceedings arose may be summarized as follows:
On the 12th day of January, 1938, Arthur Schuster, father of the appellants and brother of appellee Edward Schuster, made and executed a voluntary irrevocable trust, naming Edward Schuster trustee. By the provisions of the trust the net income therefrom[75 Ariz. 22] was to be paid to the settlor during his life, and upon his death was to be paid to his two children, Ruth and Arthur, during their minority. Upon attaining their majority provision was made for the distribution of the corpus of the trust to the two children over a twenty-five year period. In the event the children should not live to take the corpus provision was made for its distribution to contingent beneficiaries, being his grandchildren, his sister Margaret Schuster Ellison, and his brother Edward Schuster, the designated trustee and appellee herein.
The trust agreement specifically stated that it was 'to be irrevocable without the consent of the trustee and all beneficiaries'.
On September 6, 1940, suit was brought in the Superior Court of Apache County by the settlor against appellee Edward Schuster, trustee, and appellants Ruth and Arthur, at that time minors. The contingent beneficiary, Margaret Ellison, was not included in the action, and the record establishes that she was not served with process nor did she consent to the dissolution of the trust. The complaint was for a declaratory judgment to establish the legal rights and liabilities of the respective parties to the trust. With the filing of the complaint a petition for appointment of guardian ad litem for the infants Ruth and Arthur was filed, and on the same date Marian Schuster, step-mother of the children, was appointed guardian ad litem. On the above date a joint answer to the complaint was filed by the trustee and by Ruth and Arthur, through their guardian ad litem. On the 13th of September, 1940, an amended complaint was filed by settlor praying for revocation and termination of the trust agreement. The trustee, Edward Schuster, and the appellants, through their guardian ad litem, and represented by the same attorney, jointly answered the amended complaint. The case proceeded to trial and hearing on this last named date, and was heard and determined on the testimony of the settlor, Arthur Schuster, and judgment rendered revoking and terminating the trust agreement.
On October 8, 1947 appellants, having become of legal age and both having married, timely filed their motion and affidavit to vacate and set aside the above-mentioned judgment of September 13, 1940.
On July 28, 1949 the motion of Roger Dale Schuster to intervene, for the purpose of moving to vacate the judgment dissolving the trust, was granted. Apparently the matter was reconsidered by the learned trial judge for on June 20, 1950 he made an order setting aside the above order to intervene; and, denied the motion of Ruth and Arthur to vacate the judgment. The appeal is from these orders.
Appellants set up four assignments of error supported by eleven propositions of law. In the interest of brevity, assignments of error 1 and 4 will be considered together as they both go to the jurisdiction of the court.
[75 Ariz. 23] Assignment of error No. 4 is set up in the following language:
'The lower court erred in depriving the minor defendants of their property rights without due process of law in violation of their rights under the Constitution of the State of Arizona and
the Fourteenth Amendment to the Constitution of the United States.'
This assignment of error is based on the undisputed record that prior to and at the time of the bringing of the suit to dissolve the trust agreement, and at the time of the appointment of a guardian ad litem for the minor defendants, and at the time of the rendition of the judgment of dissolution, said minor defendants were residents of the state of New Mexico and at no stage of the proceedings were ever served with copy of summons in Arizona or elsewhere. The assignment of error goes to the proposition that in view of the above facts the Superior Court of Apache County acquired no jurisdiction over the persons of the minor defendants. Since the very foundation of judicial proceedings is jurisdiction or the power to act, and the further fact that courts from time immemorial have been charged with the high and exalted duty to scrupulously protect the rights of infants, the question raised here merits the most careful examination.
No court can be said to have acquired complete jurisdiction so as to hear and determine any cause until it has obtained through due process, prescribed by law, jurisdiction over both subject matter and the parties, and the power to render the particular judgment that was rendered. City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062; Duncan v. Truman, 74 Ariz. 328, 248 P.2d 879.
This question presents itself: did the Superior Court of Apache County acquire jurisdiction of the minor defendants to render the judgment in question? Admittedly the appellants, Ruth and Arthur, were minors; were not served with copy of complaint or summons; and, were nonresidents and at all times without the territorial limits of the state of Arizona.
Appellants deny the acquisition of jurisdiction. Appellee, in effect, seeks to sustain jurisdiction by the fact that a guardian ad litem was appointed, and on the assumption the proceeding was one in rem--the corpus of the trust being in the state of Arizona.
To sustain their respective positions appellants and appellee lean heavily on the Arizona case of Bell v. Bell, 44 Ariz. 520, 39 P.2d 629, wherein failure to serve summons on defendant minors was held merely to be erroneous, but not fatal, error. In effect the court held that where the record discloses that the infant had been properly represented by guardian ad litem, failure to serve summons upon infants was mere irregularity which did not deprive the court of jurisdiction. It was further determined that a court of equity may appoint a guardian ad litem for a resident minor defendant in [75 Ariz. 24] cases affecting realty of minors situated within the territorial jurisdiction of the court without service of summons on the minor.
A careful consideration of the Bell case, supra, does not appear determinative of the present question for the following reasons: in the Bell case the minors were residents of Arizona; were physically present before the court at the trial; the action concerned realty of the minors situated within the territorial jurisdiction of the court; and, the provisions of Section 21-305, A.C.A.1939, requiring service of copy of the summons and complaint, were not in effect when the Bell case was decided.
Furthermore, it is insisted by appellants that the judgment in the instant case was not one in rem, as in the Bell case, but acted in personam upon the appellants as it did not affect the subject matter of the res but operated to affect the personal rights, privileges, duties and obligations of the parties to the trust agreement. Generally an action such as the one involved here, to revoke or terminate a trust, acts in personam. Densby v. Acacia Mutual Life Association, 1935, 64 App.D.C. 319, 78 F.2d 203, 101 A.L.R. 863; State ex rel. Truitt v. District Court of Ninth Judicial Dist., 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651; State ex rel. Miller v. District Court, 1947, 120 Mont. 423, 186 P.2d 506.
Clearly in this case the judgment took from the appellants a right and interest which was personal to them, and which could have been personally relinquished by them had they not been incapacitated. It follows that the effect of the judgment rendered
acted in personam to the parties to ...