Brown v. Huntsman

| Minn. | Nov 29, 1884

Gilfillan, C. J.

It was entirely proper for the district court to proceed on the appeal before it upon the motion of Minnie P. Huntsman. It had proof before it that she was the acting guardian of the minors, under an appointment by the probate court, and a proper person, therefore, to contest the appellant’s claim still to be guardian. No, substitution was necessary. In such cases there is no formal entitling as in adversary actions. There is usually, by way of title, a description of the proceeding, enough to show what it is. Upon an appeal like this coming into the district court, it may allow any one who shows his right to resist the appeal to do so. He becomes a party to the proceeding by so doing.

Of the order brought by appeal into the district court, the only portion which the appellant could complain of was the part removing him from the guardianship. For, if he was properly removed, it was no concern of his who was appointed his successor. Nor, he being removed, could he complain that the order directs such successor to do what it would be his duty to do without such direction, to wit, to bring the outgoing guardian to an accounting.

The order of removal recites two facts, and which otherwise appear by the record, upon which it appears to have been made: First, the resignation of the guardian tendered to the probate court; second, that he had been cited to file his account, had filed it, and an order made appointing a time and place for the examination of and hearing upon it; that he had due notice of the order, and failed to appear in response to it. Either of these facts would justify the order. If based on the resignation, the more correct phraseology in the order would be that “the resignation is accepted.” But the language used here effects the same result. An order of removal, however, upon a resignation is proper. Rumrill v. First Nat. Bank, 28 Minn. 202" court="Minn." date_filed="1881-07-29" href="https://app.midpage.ai/document/rumrill-v-first-national-bank-7963911?utm_source=webapp" opinion_id="7963911">28 Minn. 202.

When a guardian files his account, it is his business to have a hearing upon it appointed. In this case it is to be presumed that the hearing was appointed on the procurement of appellant, (he does not appear to deny the fact, and it is recited as a fact in the order appealed from,) and, being procured by himself, it was for him to take notice of it. The notice by publication, however, if any was required, was sufficient. Gen. St. 1878, c. 59, § 47.

Judgment affirmed.