| Mont. | Apr 5, 1892
The following petition was filed April 15, 1891, in the District Court of the Sixth Judicial District of the State for Meagher County: —
“ To the Hon. Frank Henry, Judge of the Sixth Judicial District Court, in and for Meagher County, State of Montana: The petition of D. Driscoll, of said county and State of Montana, respectfully shows that he is a friend of William Kane, a resident of said county of Meagher. That the said William Kane is the owner of, possessed of, and entitled to the possession of, that certain real estate. [Description.] Your petitioner would further represent that the said William Kane is a man about sixty years of age, and of dissolute habits, and, as your petitioner is informed and verily believes, is habitually under the influence of intoxicating liquors, and is in the habit of using opiates, by reason of which his mind has become greatly impaired, and is therefore mentally incompetent to exercise control over or to manage either his own property or that oí his brother, Hubert C. Kane, for whom he is acting attorney. Wherefore, your petitioner prays that after due legal procedure had in the premises, your honor appoint a guardian of the person and estate of the said William Kane.”
The clerk of the court upon the same day made an order that the case be heard upon the twenty-first day of April, 1891, in the court-room of the court-house of the county. The notice of the hearing was served by the sheriff upon Kane. At the time and place which had been appointed, Driscoll was represented by his attorney, and Kane was unable to appear by reason of illness. The following order was then made:—
“Dated at White Sulphur Springs, April 21, A. D. 1891.”
Afterwards Driscoll executed his bond, and took the oath, according to law, and another order was made:—
“ State oe Montana, 1 County op Meagher, j ss*
“D. Driscoll is hereby appointed guardian of the person and estate of William Kane, an incompetent person.
“ Witness: B. W. Badger,
“Clerk of the District Court of Meagher County, Montana, with the seal of the court affixed the seventh day of May, 1891,
[seal.] “ By order of the court.
“B. W. Badger, Clerk.”
Kane has appealed to this court in his own name.
Driscoll, as the guardian, moves to dismiss this appeal upon these grounds: That Kane is .a person who is dead in law, and cannot sue or be sued, and is therefore incompetent to appeal; that the order complained of is not appealable; that the statutory remedy of Kane is under section 366 of the Probate Practice Act, and that an action is pending in the said court for the revocation of the order appointing Driscoll to be the guardian.
The Probate Practice Act allows an insane person to apply, by a petition, to the District Court, “to have the fact of his restoration to capacity judicially determined.” (§ 366.) The appellant has availed himself of this statutory privilege, and the matter is pending; but this does not affect in any way his right to appeal from the original order which is now before us. The motion to dismiss the appeal must be denied.
The first proceedings were had in vacation under the following provisions of the Probate Practice Act: “When it is represented to the probate [district] judge, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, the judge must cause a notice to be given to the supposed incompetent person of .the time and place of hearing the case, not less than five days before the time so appointed, and such person, if able to attend, must be produced before him on the hearing.” (§ 364.) “ If, after a full hearing and examination upon such petition, it appears to the probate [district] judge that the person in question is incapable of taking care of himself and managing his property, he must appoint a guardian of his person and estate, with the powers and duties in this chapter specified.” (§ 365.) The legislative assembly of the State, by an act approved March 6, 1891, conferred upon the clerks of the District Courts the power, in vacation, to file petitions for guardianship and grant letters of guardianship “where no protests or objections are made or filed thereto.” (2d Sess. Stats, p. 219, § 1.) The second section is as follows: “Any act of the clerks, as contemplated in section 1 of this act, shall be binding on all parties interested therein until the next term of the court after they are entered of record, when they shall be read in open
The transcript does not show that any of the acts of the clerk of the court below were ever read in open court, approved, set aside, or modified under the provisions of this statute. We do not think that the legislative assembly intended by this language to clothe the clerk of the District Court with the authority to hear evidence and determine that the person “is incapable of taking care of himself and of managing his property.” This involves the exercise of judicial functions which must precede the appointment of a guardian. The express limitation of the action of the clerk to matters where there are no protests or objections demonstrates that there was no intention to give judicial powers to this officer. The statute concerning the insane must receive a strict construction, and its requirements are mandatory. (Territory v. Sheriff, 6 Mont. 297" court="Mont." date_filed="1887-01-15" href="https://app.midpage.ai/document/territory-ex-rel-mccann-v-sheriff-of-gallatin-county-6637675?utm_source=webapp" opinion_id="6637675">6 Mont. 297.) No judicial power of this grave character has been vested in the clerk of the District Court, and the judge thereof has the sole power, under the Constitution and laws of the State, of granting or refusing a petition like that of Driscoll. (Const, art. viii. §§ 1, 11, 18.) The adjudication of the clerk thereon is a nullity.
It is therefore adjudged that the order appealed from be reversed, and that the case be remanded for further proceedings.
Reversed.