Hart v. Gray

11 F. Cas. 686 | U.S. Circuit Court for the District of Rhode Island | 1838

STORY, Circuit Justice.

The act of Rhode Island (Digest 1822, p. 246, § 3) provides, “That no guardian shall be appointed or removed under this act, unless all persons interested shall have had reasonable notice in writing, signed by the clerk” (of the probate court), “and served by the town sergeant or constable, that he, she, or they may appear, to object to the same.” This appointment is a special authority conferred on the' court of probate (the town council), a court of limited jurisdiction; and, therefore, its jurisdiction can be rightfully exercised only in the cases and in the mode prescribed by the legislature. If the mode prescribed for the exercise of the authority is not complied with, the appointment is utterly void. Admitting, that there might be an appeal to the superior tribunal in such a case; still, if the proceeding is a nullity in law, the exception to the jurisdiction and that nullity may be insisted on in an action like the present. The question is, therefore, reduced to the mere consideration, whether the notice, given in the present case, was within the statute. The argument is, that a notice by reading of the order of the court by the officer is a notice in writing in the sense of the statute. I think otherwise. I understand, that the notice must be a notice in writing; that the officer must leave with the party a written notice, an original from the clerk, or at least, a certified copy in writing thereof. In no just sense can a notice by reading be deemed a notice by writing; and yet tbis is the extent of the argument The legislature was’ wise in making such a provision; for the written notice might be important in assisting the party to make the proper defence or resistance to the petition. No instance, I believe, can be produced, where a notice, required to be served and given in writing, has been held valid, unless the service has been by the delivery of the paper itself or a copy in writing. It seems to me, therefore, that the guardian was not lawfully appointed; and that the decree of appointment is a mere nullity, and the plaintiff is entitled to recover. I wish to throw out another suggestion for consideration. The ground of the petition is a supposed mental incapacity of the plaintiff. Now, under such circumstances, it seems to me, that the court were bound to proceed with very great caution; and it would have been fit to have appointed some person, as a guardian ad litem, to represent the interests .of the party, and to make a de-fence before the decree appointing a general guardian was passed. What defence could a non compos make, without the assistance of some friend under such circumstances? However, it is sufficient to say, that, for the reasons which I have stated, in Which the district judge concurs, the appointment of the guardian was a mere nullity, and, therefore, the plaintiff is entitled to recover. Verdict for the plaintiff, $480, and interest