
    David Shroyer, Guardian of Harry Long, v. Jacob Richmond and Henry Staley.
    1. Upon general demurrer to an answer containing several distinct grounds of defense, the demurrer may be overruled, if any one of the defenses is sufficient to bar the action.
    2. In a suit brought by the plaintiff, as guardian, against the sureties in the bond of a former guardian, under the 7th section of the act of April 17, 1857, “ to provide for the more speedy collection of claims of creditors,” etc. (S. & 0. 621), the defendants are not precluded, by the proviso contained in said section, from denying, by way of defense, that the plaintiff is the guardian of the party for whose benefit suit is brought.
    3. Under existing legislation, the probate courts of this state have power to appoint guardians for deaf and dumb persons of full age, whom they find to be incapable of managing their affairs, without submitting the question of incapacity to a jury of any kind.
    4. Plenary and exclusive original jurisdiction is given by law to the probate courts of this state, in the matter of the appointment of guardians, and that jurisdiction attaches in any given case, whenever application is duly made for its exercise therein.
    5. Such proceedings are not inter partes or adversary in their character. They are properly proceedings in rem; and the order of appointment, made in the exercise of jurisdiction, binds all the world. The actual presence of the ward is not essential to the jurisdiction, unless, by reason of his right to choose a guardian, or for other cause, the statute so require.
    6. The probate courts of this state, are, in the fullest sense, courts of record ; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered.
    7. Hence, an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be collaterally impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.
    8. In a suit on a guardian’s bond, containing a recital of the appointment of such guardian by the proper authority, the obligors are estopped to deny the fact thus recited, or to question the validity of the appointment.
    Error to the court of common pleas of Montgomery county. Eeserved in the district court.
    This is a petition in error filed by David Shroyer, as the guardian of Harry Long, to reverse the judgment of the court *of common pleas affirming the judgment of the probate court of Montgomery county.
    The original petition, filed in the probate court March 22, 1861, by Shi’oyer, as guardian of Long, a mute, against Eichmond and ¡Staley, stated that said court, on May 12, 1857, appointed one John E. Coblentz as guardian of Long; that Coblentz, with Eichmond and Staley as his sureties, gave bond as guardian (the bond reciting his appointment as guardian for Long, a mute), and entered u|>on the trust; that Coblentz resigned the guardianship August 6, 1860, having in his hands, as shown by his final account, and found by the probate court, a balance of $1,607, which the court ordered him to pay over to his successor; that the court, on December 6, 1860, appointed the plaintiff, Shroyer, guardian of Long, and that he duly qualified as such, and became entitled to said balance found in the hands of Coblentz; that on March 13, 1861, he recovered judgment, in he probate court, against Coblentz, for the $1,607, and costs; that execution, issued on. the judgment, was returned “ no goods or chattels, lands or tenements,” etc.; that he demanded the amount of the judgment of the sureties, Eichmond and Staley, and they refused to pay; and that the judgment and costs remain unsatisfied; and asks that said sureties may be notified to show cause why they should not be made parties to the judgment, and why execution should not issue thereon against them, etc.
    The defendants were personally served with process, and answered the petition, in substance, as follows :
    1. That the plaintiff is not the duly appointed guardian of Long; that the probate court, in making the pretended appointment of the plaintiff as such guardian, did not find Long to b® a person, or to belong to any class of persons, over whom or whose estate that court had jurisdiction to appoint a guardian; and that the appointment was made without authority of law.
    2. That when the pretended appointment was made, Long was not a person, and did not belong to any class of persons, over whom or whose estate the probate court had jurisdiction or authority by law to appoint a guardian.
    3. That the pretended bond is invalid and not their bond, because *when the pretended appointment of Coblentz as guardian of Long was made, the probate court did not find Long to be a person, or to belong to any class of persons, over whom and whose estate the said court had jurisdiction to appoint a guardian, and that the appointment was made without authority of law.
    4. That when the pretended appointment of Coblentz as guardian of Long was made, Long was not a person, and did not belong to any class of persons, over whom or over whose estate the probate court had power to appoint a'guardian.
    The plaintiff demurred to this answer. The demurrer was overruled. He then replied, denying each and every allegation in the answer; and on his application the issues were tried to a jury.
    To maintain the issues on his part the plaintiff offered in evidence two journal entries made by the probate court.
    The first entry, made May 12, 1857, is as follows:
    “ In the matter of Harry Long (a mute). On application, the court appoint John R. Coblentz guardian of Harry Long, a mute, and said John R. Coblentz thereupon came into open court and accepted said appointment, and gave bond in the penal sum of three thousand dollars, with Jacob Richmond and Henry Staley as his security, approved by the court and conditioned according to law.”
    The other entry, made December 6,1860, is as follows:
    “ In the matter of the guardianship of Harry Long (a mute). This day came David Shroyer and made application to be appointed guardian of Harry Long (a mute), and the court being satisfied that said Harry Long is a mute, and that said mute is a. resident of this county; and the said David Shroyer having filed in this office a statement, duly verified, of the whole estate of said Harry Long, a mute, and the probable value thereof, it is, therefore, by the court ordered that said David Shroyer be and he is hereby appointed guardian of the person and estate of said Harry Long. And thereupon came the said David Shroyer in open court, and accepted said appointment, and took an oath that he would faithfully and honestly discharge the duties devolving upon him as such *guardian; and also gave and filed herein his bond, [458 ■in the penal sum of three thousand two hundred and fifty dollars, conditioned according to law, with John Shroyer as his security, which bond was approved by the court.”
    The plaintiff then rested, offering no further proof.
    To maintain the issues on their part, the defendants offered to prove to the jury, by parol testimony, that at the time of the appointment of Coblentz and Shroyer respectively, as guardians of Long, he was neither a minor, a lunatic, insane person, an idiot, nor a deaf and dumb person incapable of taking charge of his-affairs; and that there was no testimony offered before the court, at the time of making either of said appointments, to show that Long was a minor, lunatic, insane person, idiot, or deaf and dumb person incapable of taking charge of his affairs; and that he was-not brought before the court; and that there was no jury summoned by the court, nor inquest held by a jury, nor a jury sworn for that purpose, nor any testimony offered before a jury or the-judge, to show that he was a deaf and' dumb person incapable of taking charge of his affairs ; nor any verdict of a jury finding him to be such a person.
    The plaintiff objected to the admission of this testimony. The objection was overruled and the testimony admitted, and the plaintiff excepted.-
    The testimony being closed, the probate court charged the jury, in substance, among other things, that if Long was a deaf and dumb person, of full age, incapable of taking charge of his own affairs, then, before the court could appoint a guardian for him, it. was necessary for a jury of five freeholders to have found, by a. verdict, that he was such a person.
    The court further directed the jury to inquire into the regularity ■of the proceedings had in the probate court at and preceding the .appointment of the alleged guardians, and whether the court did ■what, under the instructions, was necessary to authorize it to make •the appointments; and directed the jury to consider the parol tes-timony which the defendants were permitted to offer upon that ^question.
    The plaintiff excepted to the charge of the court.
    *The verdict was in favor of the plaintiff upon the issues joined upon the second and fourth defenses set up in the answer, .and in favor of the defendants upon the issues joined upon the first ;and third defenses.
    The plaintiff moved to set aside the verdict and for a new trial,. .on the grounds (1) that the verdict was contrary to the weight of ■the evidence, and (2) against the law of the case. The court over,ruled this motion, and the plaintiff excepted.
    The defendants moved for judgment on the verdict, in their .favor. The court granted their motion, and the plaintiff excepted.
    Judgment was entered for tho defendants, and to reverse the •same, the plaintiff filed his petition in error in the common pleas, rinsisting that the probate court erred:
    1. In overruling his demurrer to the answer of defendants.
    2. In admitting the parol testimony to show that when Coblentz -was appointed guardian, no jury was called or inquest held, etc.
    3. In its charge to the jury.
    4. In overruling his motion for a new trial, and in giving judgment for defendants. *
    The common pleas affirmed the judgment of the probate court. 'To reverse the judgment of affirmance, a petition in error was filed in the district court, and was therein reserved for decision here.
    
      J. H. Baggott, for plaintiff in error:
    1. These sureties, having been served personally by summons, -can not make any defense except such as has arisen since the judgment against the guardian was rendered ; such as payment, or the like, or fraud in obtaining the judgment. S. & C. Stat. 621, sec. 7, proviso ; Matthews’ Guardian’s Guide, 106.
    2. Section 17 of the act of March 9, 1838 (S. & C. 679), was the ■ only provision of law in force authorizing the appointment of Cob.lentz ás guardian of Long. The remainder of the act was repealed ¿by section 63 of the act of March 19, 1850. Curwen’s Stat. 1568. No law required a jury to find that Long was a deaf and dumb person when Coblentz was appointed guardian.
    *3. The probate court erred in admitting parol testimony 'to show that at the time of the appointment of Coblentz as guardian ■of Long there was no jury called, no inquest held, etc. It was not necessary that the journal entry should show what was the evidence before the probate judge, which satisfied his mind that Long was a proper person to have a guardian. The probate judge, in making the appointment, proceeded upon proofs. Will not this court presume that the proofs produced satisfied the probate court that Long was deaf and dumb, and a proper person to have a guardian ? See ■Glover’s Heirs v. Ruffin, 6 Ohio, 270; Smith v. Pratt, 13 Ohio, 550; Bohart v. Atkinson, 14 Ohio, 228.
    
      Conover & Craighead, for defendants in error:
    1. If Coblentz or Shroyer was not guardian by a valid appointment authorized by law, the plaintiff had no more right to institute proceedings on the bond, than any other stranger.
    If the appointment had been valid, by a court either of general or limited jurisdiction, for a party within its jurisdiction, and the bond a valid statutory bond, we should at least seriously doubt whether a judgment, under the statute cited, against the guardian, would be more than prima facie evidence against the sureties. Surely, unless the statute was explicit, they could not be held conclusively bound by a proceeding to which they were not parties, and be precluded from showing the true amount of their indebtedness.
    2. The following are, we believe, all the laws authorizing the appointment of guardians: Curwen’s Stat., p. 413, sec. 17; p. 1568, sec. 63; p. 2051, sec. 58; pp. 2323, 2324, 2630, sec. 1, parts 4 and 6; p. 2749, see. 41..
    3. The probate court is a court of limited and not of general jurisdiction. Davis v. Davis, 11 Ohio St. 386, 391.
    It must appear upon.the face of the proceedings of a court of limited jurisdiction, that it acted within its jurisdiction, or its proceedings are void. Lessee of Maxsom v. Jeffries, 12 Ohio, 207; Adams v. Jeffries, 12 Ohio, 273; 1 H. S. Digest, 621, 53.
    Even if the court be one of general jurisdiction, and its record does not show affirmatively that it had acquired ^jurisdiction, the fact that it had no jurisdiction may be shown, and the proceedings impeached collaterally. See cases above cited.
    These authorities, we think, show that the court did not err in. overruling the demurrer to the answer, nor in permitting parol evidence, not contradicting the record of the prohate court, to go to the-jury to show that the court had acquired no jurisdiction over Long; that’ its pretended -appointments of guardian for him were invalid, etc.
    4. Did the record of the probate court show jurisdiction to appoint Ooblentz or Shroyer guardian of Long ? It is to be clearly inferred from the record, that the only record evidence of the proceedings and findings of the probate court at the time of the respective appointments, consisted of the journal entries of May 12,. 1851, and of December 6,1860. They show that, at the time Coblentz was appointed, application was made to appoint a guardian, for Long, “a mute.” The appointment was made for him, “a mute,” and is so recited in the bond. When Shroyer was appointed the application was in the same form, and the express and only finding was that he was “a mute,” and that said mute was a resident of the county. It seems to us that this record clearly imports that the appointment was made solely because he was a mute, and. that it can not be presumed that the court found him to be “ a. minor, resident of the county,” or “ an idiot or lunatic, resident of the county, for whom it is necessary to appoint a guardian in order-to preserve his property,” or “a deaf and dumb person who is incapable of attending to his affairs.”
    The liability of the sureties can not be extended beyond the-letter of the bond. McGovney v. The State, 20 Ohio, 93; State v. Boring, 15 Ib. 507; State v. Medary, 17 Ib. 554; Lytle v. Davis, 2 Ib. 277.
    As to the parol proof: There is nothing in the record to show
    that the finding of the jury, that neither Ooblentz nor Shroyer was-duly appointed, was against the evidence or the law as given them by the court.
    It is immaterial whether Long was in fact a minor, lunatic, insane person, idiot, or deaf and dumb person, if that fact was not before the court,’ nor in any manner found by the court, nor the-appointment made by reason thereof.
    *The 17th section of the act of 1838 (1 Cur. 413), being in all its parts saved from repeal by the very act which repealed the-¡first, and no substitute as to tbe manner of appointment being en- . acted, tbe manner of appointment, etc., remain in as full, force as if .said first section were embodied in tbe seventeenth, in terms. Ludlow’s Heirs v. Johnson, 3 Ohio, 517; Stahl’s Lessee -v. Maeallister, 9 Ohio, 21.
   Scott, C. J.

It is claimed by the plaintiff in error, that the probate co.urt erred in overruling his demurrer to the answer of de.fendants.

That demurrer was-general, and went to the whole answer; and was properly overruled, if either of the defenses set up was suffi.cient to bar the action.

The section of the statute under which this suit was brought ■contains a proviso as follows: “Provided, that in all cases in which service of process shall have been made upon such . . . . guardian by publication, .... the surety shall be permitted to make the same defense as the .... guardian could have made.”

It is claimed by the plaintiff that because the sureties were personally served with process, they can, under this proviso, interpose only such defense as may have arisen after the rendition of judgment against their principal. This is clearly a mistake. Their right to make the same defense as the guardian could have made, ■depends, not on the manner in which they were brought into court, but on the manner in which the appearance of their principal (Coblentz) was obtained, when the judgment was rendered to which it is sought to make them parties. Whether their principal was brought in by publication, or by personal service of summons, does not appear. But even if Coblentz had been personally served with process, still we think the sureties might aver and prove that the plaintiff was not the guardian of Long, and could not therefore maintain an. action against them as such. Such a defense must be permitted, or the sureties might be liable to a double accountability —once in' this action, and again when sued by the real guardian.

This, at least, was a good defense, and the demurrer to it was properly overruled.

*The jury was instructed; on the trial of this cause, that a guardian could not be legally appointed for a deaf and dumb person until the fact of his being a deaf and dumb person, of full age, and 'incapable of taking charge of his affairs, had been first found by the verdict of a jury of five freeholders, duly summoned, impaneled, and sworn for that purpose, pursuant to the provisions of the-first section of the act of March 9, 1838. 1 Curw. 407.

That act had relation mainly to lunatics, insane persons, and idiots; and its first section provided for an inquest of lunacy, to beheld by an associate judge of the court of common pleas and a jury of five freeholders. In section 17 authority was given to the court of common pleas “ to appoint guardians to all such deaf and dumb-persons, of full age, who may prove to be incapable of taking charge of their affairs; ” and it was directed that, in all cases, the proceedings to establish such incapacity should be according to the provisions of section 1 of the act. The whole of this act, except section 17, was repealed by the act of March 19, 1850, on the same subject, which wholly dispensed with a jury in inquests of lunacy. 2 Curw. 1598.

Now it may well be doubted whether the intention in saving this-seventeenth section from repeal, was not merely to continue in force the power of appointing guardians in the class of cases for which it had provided, without intending thereby to continue in force the old mode of holding inquests in such cases, which was wholly changed in regard to lunatics. But were it otherwise, still the constitution of 1851 abolished the office of associate judge, and so rendered it impossible to hold -an inquest in the mode provided by the act of 1838; and under the system of distinct probate courts, inaugurated by the present constitution, power was expressly conferred on those courts “to make inquests respecting lunatics, insane persons, idiots, and deaf and dumb persons subject by law to-guardianship,” without requiring the intervention of a jury in such inquests.

The act of April 7, 1856, in regard to the regulation of lunatic asylums, and the care of idiots and the insane, expressly provides-in section 41: “That the probate judge,-upon *satisfactory proof that any person resident of the county, or having a legal settlement in any township thereof, is an idiot or lunatic, and that it i 3 necessary, in order to preserve the property of such idiot or lunatic, shall appoint a guardian,” etc. Here it is clear that no jury is required in the inquest of idiocy or lunacy; and we think the effect of this legislation was necessarily to abrogate or supersede, in all cases of guardianship, the mode of inquest by a jury impaneled before an associate judge, or elsewhere.

We think therefore that a guardian- might be legally appointed by the probate court for a deaf and dumb person, of full age, who is-found by -the court to be incapable of managing his affairs, without, submitting the question of his incapacity to .a jury of any kind and that the court below erred in' instructing the jury otherwise.

On the trial below, the jury were instructed to inquire whether' any irregularities had occurred in the proceedings for the appointment of the alleged guardians, and whether such appointments had-been'made without sufficient proof of the facts necessary to-warrant them; and parol evidence was permitted to be offered for the purpose of proving such irregularities and defect of proof,

In all this the court below erred. No such inquiry should have-been allowed.

We admit that there are certain inferior jurisdictions in respect to which the rule is that they must appear to have pursued their authority strictly, and that no intendment shall be made in their favor. But this rule is not applicable to the probate courts-of this state. By the constitution they are declared to be courts of record, and are invested with full jurisdiction, in probate and testamentary matters, in the appointment of administrators and guardians, and in the settlement of their accounts, etc.; and the act defining their jurisdiction, and providing for their organization, gives them exclusive jurisdiction, among other things, “ to appoint and remove guardians, to direct and control their conduct, and to settle their accounts.” The same act declares that the probate court shall have a seal, under which all its writs and process shall be issued ; and that all transcripts issuing from *said court, under the seal thereof, and signed by the judge thereof, shall be received as evidence of the facts therein contained, in all the courts of this state. Said court is also required to keep—(1) a criminal record; (2) a civil docket; (3) a journal; (4) a record of wills; (5) a final record; (6) a record of accounts; “ which shall contain an entry of the appointment of executors, administrators, and guardians, and all partial and final accounts of executors, administrators, and guardians, and the orders and proceedings of the court thereon.” While the statute requires the record to contain “ an entry of the appointment” of all guardians, it nowhere requires that the record shall show the existence of a state of facts such as to warrant the exercise of its authority, or the evidence upon which the court relied, in making’the appointment. Nor does any rule of law require-this of such a court. True, it is a court of limited jurisdiction, and it is equally true that the jurisdiction of each of the courts of the state is expressly limited, either by the constitution or by statute. But as was said in the case of Sheldon v. Newton (3 Ohio St. 500), the distinction is not between courts of general and those of limited jurisdiction, but between courts of record, that are so constituted as to be competent to decide on their own jurisdiction, and to exercise it to a final judgment, without setting forth the facts and evidence on which it is rendered, and whose records, when made, import absolute verity; and those of an inferior grade, whose decisions are not, of themselves, evidence, and whoso judgments can be looked through for the facts and evidence which are necessary to sustain them. Orphans’ courts and courts of probate, when constituted courts of record, have uniformly been held of the former ■description.” And the authorities cited in that case fully sustain these positions.

Proceedings for the appointment of guardians, are not inter partes, or adversary in their character. They are properly proceedings in rem; they are instituted, ordinarily, by application made on behalf of the ward, and for his benefit; and the order of appointment binds all the world. In such a proceeding, plenary and exclusive jurisdiction of the subject-matter, has been conferred by statute on the probate court, *and that jurisdiction attaches, whenever application is duly made to the court for its exorcise in a given case. It is not essential to the jurisdiction, that the ward be actually before the court, unless, by reason of his right to choose a guardian, or for ■other cause, the statute so require. And when jurisdiction has attached, the court has full power to hear and determine all questions which arise in the case, whether in regard to the status of the ward or otherwise; and no irregularity in the proceedings, or mistake of law in the decision of the questions arising in the case, will render the order of appointment void, or subject it to impeachment collaterally. All questions necessarily arising in the case, becomes res adjudicates, by the final order of appointment, which binds all the world, until set aside or reversed by a direct proceeding for that purpose. The facts thus ascertained, and the sufficiency of the evidence upon which they were found by the proper court, can not be collaterally inquired into and determined de novo upon parol testimony. "Where the record shows nothing to the contrary, it will foe conclusively presumed, in collateral inquiries, that the final order ■was made upon a proper showing, by the proofs, of all the facts necessary to authorize it. The- authorities referred to in Newton v. Sheldon, supra, and many others, 'clearly settle these principles.

The record shows, that at -¿he several times when guardians were appointed for Harry Long, he was found by the court to be a mute. He may also have boen found to be deaf as well as dumb, and inca pablo of managing his affairs. That .these facts were found by the •court, will be conclusively presumed -from the order of appointment, if that order can be authorized only by such a finding. And there is certainly nothing to weaken this presumption, in the fact that the jury in this case have found, by their verdict, that at the time of both appointments, Long was the proper subject of guardianship. Tot the jury was led, by the parol evidence improperly admitted, and by the charge of the court, to find neither guardian legally appointed ; perhaps because, in .their opinion, sufficient evidence was not presented at the times of appointment, to establish what they yet find to have been the facts of the case.

*The court erred in charging the jury with the task of investigating this question; and all the parol evidence objected to by the'plaintiff should have been excluded.

But there is another ground upon which these defendants should not have been permitted to gainsay the regularity of the appointment of their principal, Coblentz, as the guardian of Harry Long. 'They were sued upon his bond as such guardian, which was executed by them as his sureties; and this'bond recites the appointment of Coblentz, by the proper authority, as the guardian of Long. By executing this bond, they obtained for their principal the possession and control of his ward’s property, and can not now be permitted to escape liability to account therefor by denying the .recitals of their own bond. They are estopped 'to do so. Douglass v. Scott, 5 Ohio, 198.

This case was tried by a jury, called at the instance of the plaintiff. The statute under which the suit was brought, gives either party the right to appeal from the judgment of the probate court, and authorizes bills- of exceptions to be taken upon trial; but we find no provision for the intervention of a jury. Of this irregularity the plaintiff does not complain; and as it occurred at his • own instance, he would have no right to. do so. We allude to the fact only to exclude the conclusion that we recognize the right of the parties to demand a trial by jury in such a case.

The court of common pleas erred iu affirming the judgment of' the probate court, and we therefore reverse both judgments, and remand the case to the probate court for trial de novo.

Hat, White, Welch, and Brinkerhoee, JJ., concurred.  