204 N.E.2d 96 | Ohio Ct. App. | 1964
This is an appeal on questions of law by Mary Kathryn Ryan from an order of the Probate Court of Crawford County terminating her guardianship of Veronica C. Kelley, an alleged incompetent, pursuant to a motion filed by Grace Thomas as the next friend of such ward, claiming that one "Marion Earnshaw, a cousin of Veronica C. Kelley, is a next of kin and is and was at the time of the appointment a resident of Crawford County, Ohio," "but was not given notice of the application for the appointment of a guardian."
Following hearing and consideration the Probate Court in its journal entry of judgment found "that said motion is well taken and thereby sustains the same" and ordered, adjudged *139 and decreed that the "guardianship of Veronica C. Kelley be vacated and held for naught," etc. The Probate Court made no specific finding as to whether Veronica C. Kelley was a next of kin of the alleged incompetent or as to whether she was known to reside in Crawford County. No bill of exceptions has been filed in this court reflecting the evidence adduced on the hearing of the motion.
The only assignments of error which the appellant has argued, and which we are thus required to consider, are as follows:
"1. The Probate Court erred in entertaining the motion of Grace Thomas as next friend.
"2. The Probate Court erred in holding that the appointment of guardian was void for failure to notify a cousin resident of the county."
The first assignment of error presents the question of whether the guardianship of an adult incompetent may be terminated under the provisions of Section
In pertinent part, Section
"Upon reasonable notice to the guardian, to the ward, and to the person on whose application the appointment was made, and upon satisfactory proof that the * * * letters of appointment were improperly issued, the Probate Court shall order that the guardianship of an incompetent terminate and shall make an appropriate entry upon the journal. * * *"
It will be observed that this section does not specify upon whose application such termination shall be had or, for that matter, that a formal application is necessary. However, assuming, without deciding, that an application is necessary and proper we should consider the pertinent provisions of several other sections of the Revised Code, namely:
Section
"* * * The sections of the Revised Code governing civil proceedings in the Court of Common Pleas shall govern like proceedings in the Probate Court when there is no provision on the subject in Chapters 2101. to 2131., inclusive, of the Revised Code. *140
"* * *."
Section
"The action of an insane person must be brought by his guardian; * * *."
Section
"The defense of an insane person must be by his legally appointed guardian, except that if there is no guardian, or he has an adverse interest, by a trustee for the suit, appointed by the court. * * *."
In Row v. Row,
There is therefore no statutory provision prescribing who shall initiate the proceedings for the termination of a guardianship contemplated by Section
"Except as the matter may be otherwise regulated by statute, *141 application for removal of a guardian or committee may be made by a relative or next friend of the incompetent. * * *"
It is therefore our opinion that the next friend of an incompetent adult is a proper person to initiate the proceedings contemplated by Section
As to the second assignment of error, the appellant contends, in effect, that the failure to notify a next of kin resident of the county of a proceeding for the appointment of a guardian does not make the appointment void, or even voidable, that there is no necessity under Section
Although it has been said that the jurisdiction of the Probate Court in the appointment of guardians has been broadly given by Section
As a part of the procedure respecting the appointment of guardians, the Legislature has prescribed by pertinent provisions of Section
"No guardian of the person, the estate, or both shall be appointed until at least three days after the Probate Court has caused written notice, setting forth the time and place of the hearing, to be served upon the following persons: *142
"* * *.
"(B) In the appointment of the guardian of an incompetent, habitual drunkard, idiot, imbecile, lunatic, or confined person notice shall be served:
"* * *.
"(2) Upon the next of kin of such person for whom appointment is sought known to reside in the county in which application is made.
"* * *."
The service of the notice prescribed by this statute thus was a condition precedent to the appointment of a guardian, and letters of appointment issued without such notice would be "improperly issued," the proof of which would be grounds under Section
The phrase, "known to reside in the county," has reference to the knowledge had by those whose duty it is to give the notice in the first place, that is, either the person applying for appointment as guardian or the court. See, for example, In reEstate of Hammer,
Section
In the appointment and removal of guardians, and the termination of guardianships, a Probate Court is in the exercise of its constitutional jurisdiction, and in the exercise of the jurisdiction of a court of general jurisdiction. In such exercise the judgment of the court in and of itself presumes that all facts necessary in order for the court to render such judgment existed and were duly found, and that every step necessary has *143
been taken to give it jurisdiction to render the judgment. Such presumption may be rebutted and overcome only by recitals in the record affirmatively showing lack of jurisdiction. State, exrel. Parsons, v. Bushong, Supt.,
This being the case, we must presume, in the absence of a bill of exceptions and in the absence of anything in the record affirmatively showing lack of jurisdiction, that the Probate Court of Crawford County in rendering its judgment terminating the guardianship found all facts necessary in order for it to do so, including the facts that Marion Earnshaw was a next of kin of Veronica C. Kelley known by Mary Kathryn Ryan, or the court, to reside in Crawford County, and that notice of the guardianship proceedings was not served upon Marion Earnshaw. In the face of this presumption, there being nothing in our record to overcome it, it is our opinion that the appellant's second assignment of error is also without merit.
There being no error prejudicial to the appellant in any of the particulars assigned and argued, the judgment of the Probate Court of Crawford County is affirmed.
Judgment affirmed.
MIDDLETON, P. J., and YOUNGER, J., concur.