Page:Federal Reporter, 1st Series, Volume 3.djvu/396

 KBTTLETON V. MOSIEB. '389 �nary havîng jurîsdiction in such matters appoînted another administrator. A judgment was obtained against the latter, upon which execution was issued, and a sale of real estate had. Everything was regular except the appointaient of the second administrator. The sale was attacked coUaterally, and upon the ground that the second appointment was void. In delivering the opinion of the court Chief Justice Marshall stated the guiding principle in such cases as follows : "If, under any circumstances, the ordinary cottld grant adminis- tration during the absence of an executor who has made pro- bate of the will, and legally competent to act, then he Would have jurisdiction of the subject, and would judge of these cir- cumstances; but if, in no possible state of things, he could grant such administration, it would be difficult to conceive how he can bave jurisdiction." Page 26. �Most, if not ail, the numerous cases in the books upon the subject will, upon examination, be found to harmonize with this general rule. The cases are very numerous in which it has been held that an adjudication, however erroneous, and even contrary to fact, cannot be collaterally attacked; but they are ail cases in which the court had possession of the subject, and was, therefore, empowered to deal with and decide ail questions arising. In such cases the court has power over the subjeet-matter, and that is jurisdiction. Grignon's Lessees y. Astor, 2 How. 319. On the other side of the line was the case of Shelton \. Tiffin, 6 How. 163, where it was held that a party not served, and whose appearance was entered by an attorney without authority, is a nullity, and may be collaterally impeached. There was nothing in the record to show the want of jurisdiction, but the court held that the want of authority in the attorney might be shown by paroi. It only remains to apply this doctrine to the case in hand. The statute is explicit in defining and limiting tha power of the probate court. Each probate judge has power to appoint guardians — First, of minors being residents of the same county; second, of minors residing out of the state and having property in the county. ����