This is an action or proceeding brought for the appointment of a guardian of the person and estate of John R. Manning, the defendant and appellant. A petition was filed in the district court of Weber County by E. J. Manning, a son of the defendant, in which it was alleged that the defendant was eighty-six years of age, physically infirm, and by reason of old age, disease, and weakness of mind was unable, unassisted, to properly “manage and take care of himself and his property,” and was likely, by reason thereof, to be deceived and imposed upon by artful and designing persons, •and, upon information and belief, it was alleged that he was imposed upon by artful and designing persons, and was induced, “without any consideration to convey to Louise Neal all his property of every kind and description, and left himself entirely penniless and without means of any sort,” and that such conveyance was made through the fraudulent representations and undue influence of Louise Neal and Alfred Neal, her husband, with whom the defendant then resided. It was further alleged that the next of kin of the defendant were the petitioner, who is fifty-four years of age, William Henry Manning, a son sixty-one years of age, and Mrs. Sarah Roylance, a daughter forty-nine years of age. The petitioner prayed that he be appointed guardian of the person and estate of the defendant. To this complaint or petition the defendant appeared and answered, denying the material allegations thereof and alleged that for some years past he had been a widower, and made his home with Louise and Alfred Neal, who assisted and cared for him, and gave him such attention as his needs demanded, and that in consideration of such service, and of the further agreement that they care for him and attend
It is made to appear by the bill of exceptions that, at the beginning of the trial, the defendant objected to the introduction of any evidence on the ground that sufficient facts were not alleged in the complaint to constitute a cause of action, or to entitle the petitioner to the relief prayed for, and especially for the reason that it was not averred that the defendant was insane or mentally incompetent to manage his property. The objection was overruled. It is further recited in the bill of exceptions that the trial of the cause continued from May 14th to the 18th, both inclusive, and that fourteen witnesses were sworn and examined in behalf of the petitioner and ten in behalf of the defendant. None of the evidence adduced, however, is contained in the bill or record. After both parties rested, the cause was continued for argument and final disposition until the 12th day of August. At that time the petitioner proposed an amendment to the complaint, as stated by his counsel, “in order to make the complaint or petition correspond to the proof,” by alleging that the defendant was insane and mentally incompetent to manage his property. The amendment, over the defendant’s objection, was allowed, but the court offered to grant the defendant such time as he desired for the purpose of preparing any further pleading or introducing further evidence. The defendant declined the offer, and thereupon the cause was argued and submitted. It is further recited in
The errors assigned relate to the rulings overruling the objection to the introduction of evidence, permitting the amendment to the complaint, and in failing to make findings. We think the judgment cannot be supported for want of findings. By statute (sections 4041, 4042, Comp. Laws 1907) it is provided:
“All issues of fact joined in probate and guardianship proceedings must be tried in conformity -with, tbe requirements of tbe Code of Civil Procedure, and in all sucb proceedings tbe party affirming is tbe plaintiff, and tbe one denying or avoiding is defendant. . Judgments therein, on tbe issues joined, as well as for costs, may be entered an denforced by execution or otherwise by tbe court as in civil actions.”
“If no jury is demanded, tbe court or judge must try tbe issues joined. If on written demand a jury is called by either party, and tbe issues are not sufficiently made up by the written pleadings on file, tbe court may direct tbe preparation of more specific pleadings, or, on due notice to tbe opposite party, may settle and frame tbe issues to be tried, and submit tbe same, together with tbe evidence of each party, to the jury. If tbe trial of tbe issues joined requires tbe examination of an account tbe court or judge must try tbe matter or refer it, and no jury can be called.”
By the Code of Civil Procedure, section 3167, it is provided that “ all issues in a civil action shall be tried by the court, unless in cases where a jury may be had,” and demanded as by the statute provided; and, by section 3168, that “upon a trial of a question of fact by the court its decision must be given in writing, and filed with the clerk,” etc., and by section 3169 that, “in giving the decision, the facts found and the conclusions of law must be separately stated, and judgment must thereupon be entered accordingly.” The respondent contends that “in probate and guardianship- matters findings axe neither necessary nor required;” that “it
We have been referred to the cases of In re Levinson’s Estate, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479, In re Averill’s Estate, 66 Pac. 14, and In re Schandoney’s Estate, 133 Cal. 387, 65 Pac. 877, where it was held that specific or express findings were not essential to support an order allowing a settlement of a final account of an administrator, executor, or guardian. Such rulings, however, are based upon the theory, and as stated in the first case, that the manner in which an account of an executor or administrator is usually made up and the manner in which objections thereto are usually presented do not at all conduce to the development of issues such as arise upon the pleadings in a civil action and to which findings are required to be responsive, and, as stated in the case of In re Sanderson’s Estate, 74 Cal. 199, 15 Pac. 753, that exceptions to an account do not create “issues of fact joined,” such as must be submitted to
Having reached the conclusion that findings were essential to support the judgment, that the right of a party to have the court make findings is a substantial right, and that a failure of the court to make findings requires a reversal of the judgment, we do not deem it necessary to pass upon the other questions presented, for on a retrial of the case it is not probable that they will again arise.
It is therefore ordered that the judgment of the court below be reversed and the case remanded to the district court, with directions to grant a new trial. Cost to appellant.