Linderholm v. Ekblad

92 Kan. 9 | Kan. | 1914

Per Curiam:

This is an original action in the nature of quo warranto brought by the plaintiff, Justus B. Linderholm, tb oust the defendant from the office of guardian of the plaintiff, “alleged insane.” Four reasons are assigned as a basis for the actionFirst, that the probate court had no jurisdiction to appoint the guardian; second, that the plaintiff had no notice of the hearing in the probate court and no opportunity to be present in person or by attorney; third, that the district court had no jurisdiction to proceed with the trial for the reason that there had been no proper finding of insanity in the probate court; fourth, that the defendant was administrator of the estate of the mother of plaintiff and there were matters to adjust between this estate and the plaintiff, and defendant was disqualified by reáson thereof to be appointed as such guardian. Probably all of these questions are appealable to the district court after a hearing in the probate court under the provisions of subdivision 9 of section 3624 of the General Statutes of 1909.

The defendant filed a demurrer to the petition and also a motion to dismiss the action. The motion and demurrer are substantially on the same grounds, and as the motion, in the view we take of it, makes a final disposition of the case in this court, we will consider the motion only.

Four grounds are assigned as cause for dismissal: First, that the case is improperly on the docket because no security for costs has been given, as required by Rule 4 of this court; second, that as an original civil action it is improperly upon the docket for the reason that no affidavit has been filed giving reasons why this action is not brought in an inferior court, as required by Rule 5; third, that this court has no jurisdiction for the reason that the petition on its face shows that the plaintiff has an adequate remedy at law; fourth, that this court has no jurisdiction in this case to grant the relief prayed for.

The first, second and third grounds of the motion are involved in other cases pending in this court and need not be determined herein.

Whether this court has jurisdiction or not depends upon subdivision 1 of section 680 of the civil code, which reads:

“When any person shall usurp, intrude into or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state.”

This is the grant of j urisdiction to the supreme court, and unless -the provision grants it this court has no j urisdiction.

Assuming, for the purpose of the argument, that the defendant was irregularly appointed guardian of the plaintiff’s estate, the question is whether such guardianship is a public office. The only authority presented under which it is claimed that the position constitutes a public office is Trotter v. Mitchell, 115 N. Car. 190, 20 S. E. 386, in which it was held that in North Carolina a public administrator is a public officer; that the office is a property right, and the incumbent can not be deprived of it except by the law of the land. In that state the term of the public administrator is eight years. He is not appointed to administer one estate, but all estates that come within his jurisdiction. The case has no application to the case at bar.

By the provisions of section 2473 of the General Statutes of 1909, the probate court has power to appoint •and remove guardians of minors and feeble-minded persons. The appointment when made is' not for a definite term, but the appointee is subject to removal by the .same court at any time for cause. Such guardian is not a public officer, and this court “has no jurisdiction to entertain the case.

The motion to dismiss the action is sustained.