State ex rel. Lowary v. Superior Court

Rudkin, J.

On the 23rd day of July, 1904, A. D. Stout filed a petition in the superior court of Lincoln county, praying for the appointment of himself, or some fit and proper person, as guardian of the person and estate of his daughter, Addie V. Lowary, on the ground that she was mentally incompetent to manage her property, and that she had property needing care and attention. The petition averred that said Addie Y. Lowary was a resident of said Lincoln county, and had no relatives residing therein except the petitioner and his wife, hut did not set forth who, if any person, had the care, custody, and control of said Addie Y. Lowary. August 3, 1904, was fixed as the date for the hearing of said application, and on the 23rd day of July, preceding, notice of such hearing was personally served on said Addie Y. Lowary by the sheriff of Lincoln county. The matter was continued until the 16th day of August, 1904, and on the latter date a hearing was had and an order made, appointing the petitioner guardian as prayed. At such hearing said Addie V. Lowary did not applear in person, but one Mulligan and the prosecuting attorney o£ Lincoln county appeared in her behalf. (

On the 30th day of September, 1904, said Addie V. Lowary filed a petition for the vacation of the order appointing the guardian, on numerous grounds — among others, that she was not a resident of Lincoln county at the time said application was made, -and had not resided in said county for more than one year prior thereto. On the 18th day of October, 1904, the petition to vacate was denied. On the 2nd day of October, 1905, application was made to this court for a writ of review to review the order appointing the guardian and the order refusing to vacate the appointment. The writ was allowed, and the matter is now before us for final determination.

On the 2nd day of December, 1905, the respondent filed in this court a statement, signed by the relator, reciting that the matter in dispute has been satisfactorily adjusted, and praying that this proceeding be dismissed. In opposition to this motion there has been filed affidavits of the relator and her husband, to the effect that if any such statement was signed by relator it was signed through mistake and obtained through fraud. This court will not dismiss a case because of a cessation of the controversy, unless such cessation is shown by clear and satisfactory proof. No such showing is made in this case, and the motion to dismiss is accordingly denied.

It was further contended by the respondent that the writ was not applied for within the time limited by law. The statute does not fix the time within which such applications must be made, but the courts by analogy apply the limitation fixed by law for the prosecution of an appeal. Ordinarily this court will not entertain jurisdiction of an application of this kind after the time limited by law for prosecuting an appeal has expired, but it appears from the application before us that the relator was in ill health, and was deprived of her property by the order complained of, and was thus without means to give bond or employ counsel to prosecute an appeal. In addition to this, the respondent charged, and the court found, that she was incompetent to manage her affairs, and the respondent who preferred the charge will not now be heard to gainsay it. This court will therefore assume, for the purpose of protecting her rights, that the relator was in fact incompetent, and in view of these facts we are of the opinion that the application was timely made.

On the merits of the case little need be said. It clearly appears that both the order appointing the guardian and the order refusing to vacate the appointment are erroneous. The statute provides that notice of applications of this kind must be served on the minor or incompetent person, and on the person having the care, custody, and control of such minor or incompetent person, and that the person for whom a guardian is sought must be present at the hearing if able to attend. The former of these requirements at least is jurisdictional. A proceeding for the appointment of a guardian is statutory, and the requirement that notice shall be given is mandatory. Ordinarily the notice to be served on the minor or incompetent person is of far less importance than the notice required to be served on the person having the care, custody, and control. The minor may be of such tender years, or the incompetent person so far bereft of reason, that the notice served upon them is little more than a formality, whereas, the law presumes that those having the care, custody, and control of such persons have at least sufficient interest in their welfare to see that their legal rights are protected.

The record should therefore show that the required notice was served, or that there was no person upon whom service could be made, and that the person for whom the guardian is sought was present at the hearing or was unable to attend. The record before us not only fails to> show these facts, but it was made manifest to the court on the petition to vacate the order of appointment that the relator was in the care, custody, and control of certain persons at the time of the application, and that no notice of the application was served Upon them; that the relator was able to attend at the hearing and did not, and in addition to all this that the relator was not a resident of Lincoln county at the time of the application and had not been for more than one year prior thereto. The court was therefore without jurisdiction and its judgment is a nullity.

The judgment is reversed and the cause remanded, with directions to vacate the order appointing the guardian and require the respondent to account for all moneys or property received by virtue of his appointment.

Mount, C. J., Fullerton, Hadley, Cbow, Root, and Dunbab, JJ., concur.