Harvey v. Rodger , 84 Ind. App. 409 ( 1924 )

Appellee filed his complaint in the Madison Circuit Court January 17, 1921, alleging that appellant was an inhabitant of that county and was incapable of managing her estate because of old age and infirmities, and asking for the appointment of a guardian. The record shows that without a summons being served on her by the sheriff, or by any other person authorized to serve a summons, she filed an answer January 21, 1921, alleging that, "on account of physical disability, she is unable to appear in person at said court; that she is of sound mind and disposing memory, but that, on account of her present physical infirmities, an emergency exists for the immediate appointment of a guardian of her person and estate; and that it is her desire that a guardian of her person and estate be appointed forthwith," and asking the court to appoint appellee as such guardian. This answer was sworn to by appellant before Guy R. Ayers, a notary public, and who, we assume, was one of the attorneys who signed said complaint as attorney for appellee, although there is nothing in the record to that effect, other than what may be inferred from the petition of appellant to vacate and set aside the appointment of appellee as her guardian. Immediately upon the filing of this answer, the matter was submitted to the court and, after hearing the evidence, the court found that appellant was a resident of Madison county, that she had an estate, that on account of physical infirmities she was unable to look after her estate, and it was decreed that a guardian should be appointed for her, because of her physical infirmities. Appellee, on said last named day, was appointed her guardian, his bond having been fixed at $60,000.

On November 28, 1921, appellant filed her motion to set aside said judgment and appointment, and, on December 14, 1921, she filed her amended motion for that purpose. In this amended motion, appellant alleged that she had never been served with summons; that the judgment was taken against her without her knowledge or consent; that the attorney who appeared for her in said matter had no authority from her; that the judgment was taken when she was not present in court and when no answer had been filed by her. It also alleged that said judgment had been procured by reason of the fraudulent conduct of one of her attorneys upon whom she relied; that the complaint filed for the purpose of having the guardian appointed was filed by her said attorney upon whose alleged wrongful conduct she relied; that this same attorney, through fraud, induced the court to render the judgment against her. A meritorious defense is alleged and also that the motion to set aside was filed as soon as she discovered the judgment had been taken against her.

January 9, 1922, appellee filed his motion, in which it was alleged that the petition heretofore referred to for the appointment of a guardian for appellant came on for hearing January 21, 1921; that appellant's verified answer to said petition was filed on said day, in which she acknowledged her physical infirmities and asked for the immediate appointment of a guardian; that the cause was heard and tried by the court and that the court appointed appellee her guardian and the existence of certain written memorials of the facts is alleged; that the clerk had failed to enter the proceedings on the records and asking for an order nunc pro tunc.

Appellant's motion to set aside the judgment and appointment of the guardian, and appellee's motion for an entry nunc pro tunc were submitted to the court for trial February 13, 1922. The court, after hearing the evidence, found against appellant on her motion to set aside the judgment and in favor of appellee on his motion for an entry nunc pro tunc, and judgment was entered accordingly, to which rulings, appellant excepted. No motion for a new trial was filed and the evidence is not in the record.

From the action of the court in refusing to set aside the judgment and appointment of the guardian and in sustaining appellee's petition for an entry nunc pro tunc, appellant appeals. The errors assigned are that the court erred: (1) In overruling appellant's motion to set aside the judgment and appointment of a guardian; (2) in sustaining appellee's motion for an entry nunc pro tunc.

Appellant concedes that the evidence is not in the record and that the evidence introduced was sufficient to sustain the action of the court if the court had jurisdiction of her person and of the subject-matter of appellee's petition asking for the appointment of a guardian of her person and estate.

The record shows the filing of appellee's petition for the appointment of a guardian, that appellant filed her verified answer thereto, and that the court, after hearing the 1, 2. evidence, found for appellee and appointed him guardian. The correctness of the record showing the filing of the answer, the trial and judgment as shown by the entry nunc protunc is not and cannot, in the absence of the evidence, be challenged on this appeal. So far as this appeal is concerned, the record imports absolute verity and we must assume that appellant filed her verified answer to the petition asking for the appointment of a guardian, in which she stated that, on account of her physical infirmities, an emergency existed for the immediate appointment of a guardian and that she desired the court to make such an appointment forthwith. This answer was signed by appellant and sworn to by her January 20, 1921, before her present attorney, Guy R. Ayres, notary public. We are not advised as to whether this answer was filed by appellee in person or by attorney, other than as is shown by the record, which states that the "defendant Lena L. Harvey filed her verified answer to the complaint in these words," and then sets out the answer in full. In the face of this record, we cannot say it was not filed or that it was filed by an unauthorized person. No reversible error is shown in the action of the court in sustaining appellee's motion for an entry nunc pro tunc, as we are bound to presume the evidence was sufficient to warrant the amendment of the record. BoonvilleNat. Bank v. Blakey (1906), 166 Ind. 427, 435.

Appellant says her appeal is not from the mere sustaining of the motion for a nunc pro tunc entry, but that the appeal is from the final disposition of the case by the judgment 3, 4. rendered after sustaining the motion nunc pro tunc. If by this, appellant means her appeal is from the judgment appointing the guardian, her contention cannot prevail. The entering of a judgment nunc pro tunc does not extend the time within which an appeal can be taken. Mayer v. Haggerty (1894), 138 Ind. 628. There was no judgment from which appellant could appeal other than the judgment denying her motion to vacate and the judgment authorizing the entry nunc pro tunc. The judgment appointing the guardian was rendered January 21, 1921. An appeal from that judgment could not be taken after 180 days from the date thereof, and this appeal can only be considered as an appeal from the judgment refusing to set aside and vacate the judgment appointing a guardian and correcting the record nunc pro tunc. The transcript in this appeal was filed July 26, 1922.

The statute under which the petition for the appointment of a guardian for appellant was filed was enacted in 1911. Acts 1911 p. 533, § 3442 et seq. Burns 1926, § 3111a et seq. Burns 1914. The first section of that act was amended in 1919, Acts 1919 p. 520, and, as amended, reads as follows: "Whenever any person shall file his complaint in the court having probate jurisdiction in any county, to the effect that any inhabitant of such county is incapable of managing his estate or business affairs because of old age, infirmity, improvidence, or being a spendthrift, such court shall cause not less than ten (10) days' notice of the filing of such complaint to be given such person by a summons issued by the clerk to the sheriff of said county. In all cases where the party is not represented by counsel, and no appearance of counsel has been intered [entered] in the appearance docket of such court at the expiration of the time fixed in the summons for the return of such service, it shall be the duty of the clerk of said court to deny the facts set forth in such complaint as to such disability, which issue shall be tried as the issues in civil actions are tried, by the court, or by a jury, to be impaneled under the direction of said court, and it shall be the duty of the prosecuting attorney of said county to appear for such person and to protect the interests of such person."

Appellant contends that her motion to set aside the judgment should have been sustained because: (1) The court had no jurisdiction over her person; and (2) it had no jurisdiction to appoint a guardian because of "physical infirmities."

In reference to the first contention, we do not know what evidence was introduced concerning the filing of the answer and her appearance. We do know that a summons was issued for 5. appellant on January 17, requiring her to appear January 27, 1921, and that an answer was filed to the complaint asking for the appointment of the guardian. This summons is not shown to have been delivered to the sheriff for service and, so far as the record shows, it was not served by him or by any other person authorized by him to serve the same. This summons and the indorsements on the back thereof are in the record. On the back of this summons, is the affidavit of Guy R. Ayers stating that he served the same on appellant by reading the same to her January 17, 1921. There is also a statement on the back of this summons reading as follows: "I, Lena Leota Harvey, defendant in this action acknowledge service of this summons and waive the issuance of any other summons or process on me in this cause. That on account of physical disability I am physically unable to attend the trial of this cause on 27th day of January, 1921. That I am of sound mind and disposing memory and desire a guardian appointed for me on account of my present physical infirmities." It appears that, for some reason not disclosed by the record, appellant did not want to wait until the return day for the appointment of the guardian, so, on January 20, she signed the answer heretofore referred to and swore to the same. What she then did with this answer, or to whom she gave it, is not disclosed, but we do know that, on the next day, it was filed in the cause and was actually placed in the hands of the trial judge, as it appears that on January 21, he made a memorandum on the back thereof relative to the appointment of the guardian. The summons and the alleged service thereof by Ayers will be ignored in the consideration of this appeal in so far as the question of jurisdiction of the person of appellant is concerned, as he had no authority to serve the same. While such service gave the court no jurisdiction over the person of appellant, the facts surrounding such alleged service, together with the indorsements on the back of the summons, would have been proper items of evidence for the court to consider on the hearing of appellant's motion to set aside the judgment.

Appellant in her motion to vacate the judgment alleged that it was taken against her without her knowledge and consent. We are unable to reconcile this allegation with the prevailing theory of her motion, viz., that she was induced to consent to such appointment through fraud. The motion of appellant does not allege any fraud on the part of appellee. The charge is that one of the attorneys who signed the complaint as attorney for appellee was, at the time when the proceedings to have appellee appointed guardian were had, appellant's attorney, and while acting as her attorney and prior to such appointment, made certain alleged false statements to her and to her "main counsel" relating to the appointment of a guardian, and that she and her "main counsel," believing and relying upon the truthfulness of such statements, consented to such appointment. The most reasonable inference to be drawn from the allegations in this motion is that appellant and her attorneys agreed among themselves that some person should be appointed guardian for her in order to look after certain litigation then pending in the Floyd Circuit Court and that her attorneys, acting in her behalf, prepared the complaint asking for the appointment of the guardian and signed the same as attorneys for appellee. We know nothing about what took place after the guardian was appointed and prior to the filing of the motion to set such appointment aside. She alleged that, prior to the appointment, she had commenced proceedings in the Floyd Circuit Court to set aside and vacate the appointment of an administrator of her husband's estate on the ground that such administrator had been wrongfully appointed. The evidence may have shown the appointment of appellee as guardian was procured by appellant through counsel employed by her, and that the guardian, through her attorneys, conducted the litigation in the Floyd Circuit Court to a final judgment, secured the appointment of an administrator of her own selection and that she thereafter recognized the appointment of appellee, who, during that time, may have taken charge of her property or received the same as guardian and turned it, or a part of it, over to appellant who may have had full knowledge of all such facts. Under such circumstances, the court would have been justified in refusing to set aside the appointment on the ground that appellant had failed to prove that the appointment was made without her knowledge or consent or because of the alleged fraud of her attorney.

Appellant also contends that § 3442, supra, must be strictly construed and that jurisdiction over a defendant in an action to have a guardian appointed because of old age, or 6. infirmities, can only be had by the issuance and service of a summons by the sheriff or by the voluntary appearance of the defendant in open court. This may be conceded, but, as before stated, the record shows the filing of an answer. This, as will be hereafter shown, amounted to an appearance.

On the question of laches, appellant alleged that immediately upon her discovery that a judgment had been taken against 7. her she moved the court to set aside and vacate the appointment of appellee as guardian and that she had not been guilty of any laches or unnecessary delay in asking for relief from the judgment. It would seem that the advisability of having a guardian appointed had been a subject of discussion between appellant and her attorneys both before and after the complaint for that purpose was filed. While she alleged the judgment had been taken without her knowledge or consent and that she filed her motion immediately after she learned the judgment had been taken, she fails to state when she first learned the judgment had been taken and the guardian appointed. The record shows the complaint asking for the appointment of the guardian was filed January 17, 1921, and, on that day, one of the attorneys representing her on this appeal and who, we infer, was her main counsel at that time, made oath that he read the summons to her. On the back of this summons, is a statement signed by appellant and witnessed by the same attorney, in which she undertakes to acknowledge service of summons and to waive the issuance of any other process and states that, on account of physical disability, she will not be able to attend the trial January 27, that being the return day named in the summons, and that, although of sound mind, she desired to have a guardian appointed. Three days later, she signed and made oath to an answer in which she stated that, on account of her physical infirmities, an emergency existed for the immediate appointment of a guardian. This answer was also sworn to before Guy R. Ayers, notary public. This answer was produced in court, filed and presented to the judge January 21. By whom it was presented and filed is not disclosed, but, in the absence of any evidence on that question, the presumption is that it was filed by someone who had authority to file it. It was filed, and all presumptions are in favor of the regularity of its filing. Notwithstanding this answer asking for the immediate appointment of the guardian, presumably because of the litigation then pending in Floyd county, appellant did nothing until November 28, 1921, when she filed her first motion to set aside the judgment and appointment.

It is the rule that a party seeking relief from a judgment must be diligent and not guilty of laches. The evidence introduced on the hearing of the motion to vacate may have shown that 8, 9. the guardian was, in fact, appointed at the instigation of appellant; that the attorneys who signed the complaint asking for such appointment were employed by her for that purpose; that she knew of the appointment immediately after it was made and that she stood by and for a period of ten months watched the guardian manage her estate and business, saw him conduct litigation in her behalf and for her benefit, possibly selling or disposing of personal property and real estate and turning the proceeds over to her for her support, and her acceptance of such proceeds with knowledge of all the facts. Under such circumstances, as was said in Shafer v. Shafer (1914), 181 Ind. 244, 249: "It would be unconscionable to condone such delay, where the result might embarrass or injure innocent purchasers." The Madison Circuit Court had jurisdiction over the subject-matter of appellee's complaint — the appointment of a guardian for appellant because of "old age and infirmity." This question was submitted to the court for trial. The court found that the material allegations of the complaint were true; that on account of her physical infirmities, appellant was unable to look after her estate and that because of her physical infirmities, it was not possible for her to appear in court in person, and that a guardian should be appointed. No attack was made by appellant in the lower court on the judgment and appointment of the guardian on the ground that the court did not have jurisdiction of the subject-matter. Her contention there was that the judgment was void for want of jurisdiction over her person. In support of this contention, she says: "Jurisdiction of the person of a defendant in a civil action can only be had by the issuing of summons and service thereof in one of the modes prescribed by the statute or by voluntary appearance in person." If to this had been added, "or by attorney and submission to the authority of the court" we would concede it to be a correct statement of the law.McCormack v. First Nat. Bank (1876), 53 Ind. 466.

The purpose of notice is to enable the person proceeded against to appear and defend. In re Blewitt (1892), 131 N.Y. 541, 30 N.E. 587. As before stated, the reading of the summons 10, 11. by an unauthorized person was not notice, within the requirement of the law. While there is nothing in the record before us to indicate that the proceedings were instituted in bad faith, justice and the possible grave injuries which may flow from irregular proceedings in these cases admonish courts to guard them with great strictness and to observe all practical safeguards against fraud and injustice. We have concluded that this cause should be and can be affirmed without weakening the principle announced. It is provided by statute that the voluntary appearance of a defendant is equivalent to service. § 333 Burns 1926, § 318 Burns 1914. An appearance by a defendant is a waiver of service of process, and of all defects in the notice or service thereof. Ramsey v. Foy (1858), 10 Ind. 493; Little v. Vance (1860), 14 Ind. 22; First Nat. Bank v. UnitedStates, etc., Co. (1886), 105 Ind. 227. A defendant waives service of process by filing a demurrer to the complaint,Singleton v. O'Blenis (1890), 125 Ind. 151, by filing any formal plea or motion, McCormack v. First Nat. Bank, supra, by filing a remonstrance in a ditch proceeding, Kramer v.Fishback (1913), 180 Ind. 178, by filing a restitution bond in an attachment proceeding, Eberhart v. Eyre-Shoemaker (1922),78 Ind. App. 658, 134 N.E. 227. The rule is so general that a general appearance, in person or by attorney, or a plea to the merits, is a waiver of service of process, that further citation of authorities is not necessary. And this rule is applicable in proceedings for the appointment of guardians.

In Soules v. Robinson (1902), 158 Ind. 97, 92 Am. St. 301, the court, in discussing the question of jurisdiction of the person whose sanity was being questioned, said: "In such a case, if there was in fact no appearance, and the subject of the inquiry was not produced in open court, nor any notice given to or served upon him, and the record is silent as to such matter, although the judgment is not subject to collateral attack, it may be set aside by the court in which it was rendered on the application of any person who has a right to be heard."

It was held in Foot v. Stevens (1837), 17 Wend. (N.Y.) 483, that the courts of common pleas of that state were courts of general jurisdiction and, upon a motion for a new trial, it would be intended, in support of a judgment rendered in the court of common pleas, where nothing to the contrary was shown, that the court had jurisdiction of the person of the defendant, although there was no averment in the record showing the jurisdictional facts.

There being nothing in the record to show that appellant's answer was not filed by an attorney with full authority to do so, it will be presumed that it was. The presumption is that 12. the court did its duty and that there was no necessity for the clerk to deny the facts set forth in appellee's complaint or for the prosecuting attorney to appear and resist the complaint. See Gridley v. College (1893), 137 N.Y. 327, 33 N.E. 321,Hutts v. Hutts (1878), 62 Ind. 214.

Nyce v. Hamilton (1883), 90 Ind. 417, was a proceeding under § 3425 Burns 1926, § 3101 Burns 1914, to have a guardian appointed for a person of unsound mind. The clerk filed an answer as required by the statute. On petition for a rehearing, the court said: "We are bound to presume that the court proceeded in accordance with the law, and that the clerk filed the answer because, the appellant being in court, it was his duty so to do." Under § 3425, supra, it is the duty of the clerk to form the issue by denying the facts in the statement, and of the prosecuting attorney to protect the interest of such person, while under § 3442, supra, where the defendant is not represented by counsel, it is made the duty of the clerk to deny the facts alleged in the complaint, and of the prosecuting attorney to appear and defend and protect the interest of such person. State, ex rel., v. Madison Circuit Court (1923),193 Ind. 20, 138 N.E. 762.

Under § 3425, supra, jurisdiction is acquired only by the appearance or by the production in court of the party for whom the guardian is sought, unless it is established to the 13. satisfaction of the court that his production in court would be injurious to his health. Jessup v. Jessup (1893), 7 Ind. App. 573. Under § 3442, supra, jurisdiction may be acquired by service of summons or by appearance. If the appearance is not by counsel, it becomes the duty of the clerk to deny the facts and for the prosecutor to defend. The clerk and prosecutor, however, are not required to act where there is an appearance by counsel.

It has been held, where notice is required to be given to certain relatives of the party whose lunacy is being investigated, that such relatives have no personal interest, that they represent the public and cannot consent to a hearing prior to the return day. Yeomans v. Williams (1903), 117 Ga. 800, 45 S.E. 73. It has also been held that the appointment is void where the record shows that the proceedings were begun and concluded in one day, and there was an absence of the statutory notice to relatives. Allen v. Barnwell (1904),120 Ga. 537, 48 S.E. 176. To the same effect, see McGee v.Hayes (1899), 127 Cal. 336, 59 P. 767, 78 Am. St. 57. To the contrary, holding a voluntary appearance cures want of notice, see Rogers v. Walker (1847), 6 Pa. St. 371, 47 Am. Dec. 470;Evans v. Johnson (1894), 39 W. Va. 299, 19 S.E. 623, 45 Am. St. 912; Kimball v. Fisk (1859), 39 N.H. 110, 75 Am. Dec. 213; Moats v. Moore (1916), 199 Ill. App. 270; Hendricks v.Settle (1899), 107 Ky. 344, 53 S.W. 1051; In re Anderson (1903), 132 N.C. 243, 43 S.E. 649. It has been held in Indiana, Illinois, Kansas, Kentucky, New Jersey, New York and Pennsylvania that want of notice is cured where the party appears and contests the proceedings. Moats v. Moore, supra; Martin v. Motsinger (1892), 130 Ind. 555; Nyce v. Hamilton, supra; Hutts v.Hutts, supra; In re Wellman (1896), 3 Kans. App. 100, 45 P. 726; Lackey v. Lackey (1847), 8 B. Mon. (Ky.) 107; In reLindsley (1890), 46 N.J. Eq. 358, 19 A. 726; In re Vanauken (1854), 10 N.J. Eq. 186; In re Blewitt, supra; In re Demelt (1882), 27 Hun (N.Y.) 480; Huidekoper's Case (1902), 28 Pa. Co. Ct. Rep. 394.

Martin v. Motsinger, supra, was a proceeding to have a guardian appointed for Mrs. Martin on account of unsoundness of mind. No notice was issued or served and she was not present in court at any time. The clerk filed an answer, and the cause being called for trial, certain attorneys appeared in her behalf and objected to proceeding in the cause because of want of notice. Without ruling on the objection, the court caused a jury to be empaneled and sworn and then required the petitioner to submit proof showing why Mrs. Martin was not produced in court. Witnesses were examined, and the court found she could not be produced in court by reason of physical infirmities and extreme old age, after which, the objection was overruled and the trial proceeded. On appeal, it was contended: (1) That the court had no jurisdiction over the subject-matter; (2) that the court had no jurisdiction of her person. In disposing of the first contention, the court, after calling attention to the fact that the circuit court had exclusive jurisdiction of cases of that character, said: "Jurisdiction of the subject-matter does not mean jurisdiction of the given case, but of the class of cases to which it belongs. * * * Jurisdictional questions thus raised must be determined from the face of the record." In disposing of the second objection, it was said: "In our opinion a party may not only waive notice in such cases by a personal appearance, but may appear by attorney. The appellant cannot insist that she was incompetent to employ counsel, because her standing on this appeal depends upon the assertion of her mental capacity and ability to transact business. It is not claimed in this appeal that their appearance for her was unauthorized. They not only continued to represent her in the circuit court, but represent her here. Even if their appearance for her in the circuit court had been unauthorized, it would be binding upon her until set aside." See Berry v.Berry (1897), 147 Ind. 176, where it is said, "notice is indispensable unless waived," Galbreath v. Black (1883),89 Ind. 300, being, in effect, overruled.

Shafer v. Shafer, supra, was an action to have William H. Shafer adjudged of sound mind and to have the care of his property restored to him, a guardian having theretofore been appointed for him. On leave of court, he filed what he called a complaint in equity to vacate the original judgment for alleged fraud. It appeared from his complaint that when he was an inmate of the hospital for the insane, his wife filed an application to have a guardian appointed; that he had no notice or knowledge of the proceedings until after the guardian had been appointed; that a summons in said proceedings had been issued and served on the superintendent of the hospital where he was confined pursuant to § 333 Burns 1926, § 318 Burns 1914, but that he had no knowledge of the same until after the judgment was rendered. He attacked the service on the ground that the proceeding was not a civil action, and, if it were a civil action, the provision for substituted service was void. The court, after holding that the proceeding was governed by the civil code, held that even though the substitute service provisions were void, the judgment was not void, because it did not affirmatively appear that the party had not been served with personal notice in addition to the substituted service. So here, there is nothing on the face of the record affirmatively showing that appellant was not also served with summons by the sheriff in addition to the attempted service by Mr. Ayres.

Appellant next contends that the appointment should have been vacated on the ground that the § 3442, supra, contemplates the appointment of guardians only for persons mentally 14. incapable and not for persons of sound mind. In support of this contention, it is claimed that the court was without jurisdiction or authority to render a judgment appointing a guardian for her because she was an adult person of sound mind and disposing memory. The answer to this contention is that it is not necessary under § 3442, supra, that the person for whom the guardian is asked shall be of unsound mind. Indeed, one of the purposes of this statute was to provide for the appointment of guardians for persons who are not, in fact, of unsound mind.

Sections 3442, 3443, supra, authorize the court having probate jurisdiction to appoint a guardian for a person who shall be found to be incapable of managing his estate or 15. business affairs because of "old age, infirmity, improvidence, or being a spendthrift." Old age or infirmity alone is not sufficient to warrant such appointment. It must be such as renders the person "incapable of managing his estate or business affairs."

It has been suggested that incapacity to manage his estate and business affairs means, and must be held to mean, a mental incapacity and not a physical incapacity, and that a statute authorizing the appointment of a guardian for an adult who is not mentally incapacitated would be in violation of Art. 1, § 1 of the Constitution, in that, it would deprive one of the inalienable rights of liberty and the pursuit of happiness by restraining him of his liberty and the right to the control of his property even though of sound mind and fully capable mentally of managing both his estate and business affairs through agents and servants of his own selection.

This statute was held constitutional by the Supreme Court inKutzner v. Meyers (1915), 182 Ind. 669, Ann. Cas. 1917A 872, in so far as it related to an aged person who by reason of his age had become incapable of managing his estate and business affairs. A careful perusal of the opinion of the court in that case, however, leads us to infer that the incapacity the court had in mind was a mental rather than a physical incapacity. "It has been always" said the court, "the policy of the State to protect those who by reason of youth or incapacity were incapable of managing their estates by placing their property in the hands of guardians or conservators. There is no reason apparent to the court why the same protection should not be extended to persons in their second childhood as is given to infants and persons of unsound mind or habitual drunkards." And, on page 674, the court said: "Having in mind the age of appellant and his mental condition incident thereto as shown by the evidence * * *." In support of the first quotation, the court cited Devin,Gdn., v. Scott (1870), 34 Ind. 67, where the court held the statute authorizing the appointment of a guardian for an habitual drunkard constitutional. In that case, the court was dealing with a statute which, as it said, was for the purpose of protecting persons who were incapable of protecting themselves and that the true inquiry was whether the person was incapable of making contracts and managing his property.

The Kutzner Case was one where the court was dealing with a party who was eighty-five years of age and where the evidence was sufficient to sustain the finding that he was, by reason of his age, mentally incapacitated.

For a case holding a statute providing for the appointment of a guardian for a person mentally competent but physically incompetent, unconstitutional, see Schafer v. Haller (1923),108 Ohio St. 322, 140 N.E. 517.

The Supreme Court of Massachusetts, in Foss v. Twenty-FiveAssociates (1921), 239 Mass. 295, 131 N.E. 798, under a statute providing for the appointment of a conservator to manage the estate of a person by reason of advanced age or mental weakness, held that the appointment made on the application of the ward, though of sound mind, was valid.

In the instant case, the court had jurisdiction of the subject-matter — that is, of the appointment of a guardian for a person who by reason of infirmity was incapable of 16. managing her estate and business affairs, and by reason of her appearing and filing an answer, it also had jurisdiction of her person. If the evidence was not sufficient to have warranted the court in finding that appellant, by reason of her age or infirmity, was not mentally incapable of managing her estate and business affairs, the judgment may have been erroneous, but not void. The court may have made a mistake in applying the law to the facts so that the decision would have been contrary to law and subject to reversal on appeal — a question we are not required to determine and on which we express no opinion. We are, in effect, asked to reverse the judgment appointing the guardian in the first instance on the theory that the finding of the court was not sustained by sufficient evidence and was contrary to law, without any showing as to diligence on the part of appellant in seeking relief and on the denial of the court to set aside the judgment, on a petition filed after the time for appeal had expired and when the evidence is not in the record. This we cannot do. We do not mean to be understood that appellant is without remedy. We have no doubt but that if appellant should file her petition asking that her estate and business affairs be restored to her, that the court, on proof that she is capable of managing her estate and business affairs, will unhesitatingly make such an order.

In Kimball v. Fisk, supra, the proceedings relating to the appointment of the guardian and the order nunc pro tunc were somewhat like the proceedings in the instant case. There, notice was ordered but not given as required. The person for whom the guardian was appointed there, as here, asked that a certain party be appointed his guardian, and also claimed that he was of sound mind. It was there held that if he had capacity as he claimed, he, by such request, waived the defect in the notice.

No reversible error being shown, the judgment is affirmed.