144 N.E.2d 501 | Ohio Ct. App. | 1956
This is an appeal on questions of law from a judgment of the Probate Court overruling an application of Irving H. Reynolds, a nonresident ward, for an order terminating a resident guardianship.
On June 21, 1954, an application for appointment of a *103 guardian was filed by Lawrence G. Reynolds, father of the ward. On July 2, 1954, without notice to the ward, the application was heard and, upon the giving of a bond in the sum of $20,400, letters of guardianship of the estate were issued to Lawrence G. Reynolds.
On April 11, 1956, an application was filed by Irving H. Reynolds reciting that on July 2, 1954, Lawrence G. Reynolds was appointed as guardian of his Ohio estate on the ground that he was confined to a state institution, but that he has not been so confined since November of 1955, and that he is fully capable of taking care of himself and his property. He further moved for the discharge of said guardian on the ground that the appointment was void ab initio for the reason that at the time prior to the appointment he, the ward, was not served with notice as provided in subdivision (B) (1) of Section
Determination of the question depends upon whether the 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:
"* * *
"(B) In the appointment of the guardian of an incompetent, habitual drunkard, idiot, imbecile, lunatic, or confined person notice shall be served:
"(1) Upon the person for whom such appointment is sought by personal service;
"(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;
"Such notice shall be served by delivering a copy to each person named therein, by leaving such copy at his usual place of residence, or by sending such copy by registered mail to his last known address, except that when required by this section, *104 personal service of such notice shall be made on the person for whom such appointment is sought. Such notice may be waived in writing by all competent persons except the person for whom such appointment is sought.1
Section
"(A) `Guardian,' other than a guardian under Sections
"* * *
"(C) `Resident guardian' means a guardian appointed by a Probate Court to have the care and management of property in Ohio belonging to a nonresident ward."
The provisions of Sections
Prior to the adoption of the 1932 Probate Code, former Section 10989, General Code, relating to resident idiots, imbeciles, etc., Section 10989-1, General Code, relating to confined persons, and Section 11012, General Code, relating to drunkards, contained provisions for notice of hearing on the application for appointment of a guardian. No statutory provision was made for notice of hearings for the appointment of guardians for minors. It had been held that notice was required to be given parents. In re Guardianship of Gerbig, 11 N. P. (N.S.), 529, 57 W. L. B., 77; State, ex rel. Fisher, v. Madden, 12 Or. D. (N. P.), 83. In 1931, Section 10507-4, General Code (now Section
No distinction was made in Section 10507-4, General Code, with respect to residents and nonresidents, but it is apparent that the General Assembly overlooked the provisions of Section 11014, General Code (because no provision for notice was made therein) and intended to incorporate in Section 10507-4, General Code, the provisions of former Section 10989, General Code, relating to notice to resident incompetents which referred to "a person resident of the county, or having a legal settlement in any township thereof."
Since provisions in the Probate Code for the appointment of a resident guardian for a nonresident ward originated in statutes relating exclusively to that subject, with no requirement of notice to the ward, and since the General Assembly in enacting Section 10507-4, General Code, in 1931, made no specific requirement for notice of a hearing upon the appointment of a resident guardian for a nonresident ward, there is considerable *106
basis for the contention that the General Assembly did not intend that the provisions of Section
We now proceed to consider whether the proceedings were voidab initio, or merely voidable at the election of the ward.
It has recently been held that in a proceeding for an adjudication of incompetency of a resident, compliance with the provisions of Section
Aside from the failure to serve him personally, appellant was given no notice of the proceedings upon the application, or an opportunity to be heard thereon. It is a well-established *107
principle that notice and hearing, or an opportunity to be heard, are essential elements of due process of law, and that a person deprived of his property without an opportunity to be heard, is denied due process of law. 11 Ohio Jurisprudence (2d), 66. It is held that a guardianship proceeding is one in rem, Shroyer,Gdn., v. Richmond,
For the reasons stated, the judgment of the Probate Court is reversed and the cause is remanded with instructions to grant the motion to terminate the guardianship and for further proceedings according to law.
Judgment reversed.
CONN and DEEDS, JJ., concur.
At the time Shroyer v. Richmond, supra, was decided, no notice was required by statute. In Jordan, Gdn., v. Dickson (1888), 10 Dec. Rep., 332, 20 W. L. B., 360, Judge Taft expressed the opinion that, although the statute made no provision for it, notice ought to be given to the imbecile. *108