The question to be considered and disposed of, is, whether the appointment of the defendant guardian of the plaintiff, by the surrogate of Allegany county, is absolutely void on the ground that the plaintiff resided in another county, or whether such appointment is only voidable?
By subdivision 7 of § 1 of title 1, chapter 2 of the 3d part of the Revised Statutes, surrogates have power “ to appoint guardians for minors, to remove them, to direct and control their conduct, and to settle their accounts as prescribed by law.’
By 2 Revised Statutes, 150, § 4, every minor of the age of fourteen, may apply by petition to the surrogate of the county where the residence of such minor may be, for the appointment of such guardian as the minor may nominate, subject to the approbation of the surrogate.
Section 5 provides that if the minor be under the age of fourteen years, any relative or other person, in his behalf, may apply to the surrogate of the county where such minor may reside, for the appointment of a guardian of the minor until he shall arrive at the age of fourteen years, and until another guardian shall be appointed. Upon the making of any such application the surrogate shall assign a day for the hearing thereof, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county, as he shall on due inquiry think reasonable.
A careful examination of these provisions of the statute, satisfies me that the application for the appointment of the guardian of the infant under fourteen should be by petition, setting forth the facts upon which the surrogate is to act in making the appointment. The infant over the age of fourteen is to apply by petition as provided in section 4; and I can see no reason why a petition should not be required where the application is in behalf of the infant who is under fourteen. It is true the term petition is not mentioned in section 5, but the language of the section by implication relates back to section 4. The sentence “ if such minor be under the age of fourteen years, any relative or other person in his behalf may apply,” &c., can bear no other construction than that the application is to be made in like manner as provided by section 4; the only change in that respect relates to the person who may apply.
*102The proceedings on the application being made, are, however, entirely different. Under section 4, the application is to be made on the nomination of the infant and the approval of the surrogate. Under section 5, the surrogate is to assign a day for the hearing and direct such notice to be given to the relatives of the minor residing in the county, as he shall on due inquiry think reasonable.
In case of Underhill vs. Dennis (9 Paige, 202), it appears that a petition was presented, but the order appointing the respondent guardian of the infant was reversed, on the ground that no notice was given to the relatives of the infant, and the respondent was not the proper person to be appointed
I assume then, without examining the answer very critically, that the petition in this case was sufficient prima facie to give the surrogate of Allegany county jurisdiction of the person of the plaintiff, and consequently the power of appointing her guardian.
The main question then recurs, can' the want of jurisdiction be averred and thereby render the appointment void, or is the plaintiff’s remedy by an application to the surrogate to vacate his own order on the ground of the fraud practiced upon him as to the infant’s residence?
In case of Borden vs. Fitch (15 J. R. 141), the court say “ the want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced, or where any benefit is claimed under it, the want of jurisdiction makes it utterly void and unavailable for any purpose.” This doctrine has been reasserted in a great variety of decisions.
On the other hand, it seems to me, it is utterly absurd to claim that where a court is. required to have certain facts proved to confer jurisdiction, and such facts are proved, yet that the party affected by the judgment may, notwithstanding such proof) attack the proceeding collaterally and be permitted to contradict the facts, proved to confer jurisdicti
The case of Field vs. Vicker (9 J. R. 130), was a case where an attachment had been issued by a justice, founded on sufficient proof. On the return of the attachment the defendant pleaded in abatement that before and at the time of issuing the attachment he resided in, &c., and had not departed nor was.about to *103depart from the county, nor did he conceal himself within the same with intent to defraud his creditors. The plaintiff demurred to the plea and the demurrer was sustained by the justice. On this subject the court say: “If the proceedings on the attachment were regular, which is not questioned in this case, the justice had no power to supersede the attachment, but must on the return thereof proceed to hear the cause as upon any other process.”
“ When certain facts are to be proved to a court having only a special and limited jurisdiction as a ground for issuing process; if there be a total defect of evidence as to any essential fact, the process will be declared void in whatever form the question may arise. But when the proof has a legal tendency to make out a proper case in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose. In one case the court acts without authority, in the other it only errs in judgment upon a question properly before it for adjudication. In one case there is a defect of jurisdiction, in the other there is only an error of judgment. Want of jurisdiction makes the act void, but a mistake concerning the just weight of evidence only makes the act erroneous, and it will stand good until reversed ” (Miller vs. Brinckerhoff, 4 Denio, 119; Matter of Faulkner, 4 Hill, 598; Harmon vs. Brotherson, 1 Denio, 537: Staples vs. Fairchild, 1 Comst. 41).
In this case a petition was presented to the surrogate by a person competent to present the same, and containing (as I assume) sufficient facts to give the surrogate jurisdiction, and the surrogate having had proof before him and adjudicated upon such proof his adjudication will be held conclusive until it is vacated or reversed by a direct proceeding for that purpose.
This is not the proper proceeding to vacate such appointment and will not be sustained for such purpose. The complaint then so far as it seeks a removal of the guardian must be dismissed