147 P. 612 | Mont. | 1915
delivered the opinion of the court.
By an order made and entered in department No. 2 of the district court of Lewis and Clark county, in June, 1912, Joseph J. Carroll was duly appointed guardian of the person and estate of Mary Murphy, an incompetent person. He immediately qualified and has since been in the active discharge of his duties. In January, 1915, Anna E. Nett, a daughter of Mrs. Murphy, petitioned the court to have her mother restored to capacity. A hearing was had in department No. 2, presided over by Hon. J. Miller Smith, with the result that the petition was denied; the court finding Mary Murphy still incompetent and incapable of caring for herself or her property. On January 18, Mrs. Nett applied to the court in department No. 1, before Hon. J. M. Clements, for the release of Mrs. Murphy on habeas corpus proceedings, alleging that she was illegally restrained of her liberty by Joseph J. Carroll, under the pretense that Mrs. Murphy is incompetent, whereas, it is alleged, she is competent and capable of caring for herself and her property. The writ was issued, and at the return time the guardian, in person and by counsel, represented that a formal return had not been prepared for lack of time and opportunity, whereupon by common consent the hearing proceeded upon the understanding that the return would seek to justify the guardian’s action by reason of the guardianship. At the conclusion of the hearing the court
We shall not stop to inquire whether- the district court
In our opinion, the order now under review should not have been made for several reasons:
1. The .district court in department No. 2, on January 15, 1915, after a hearing had for the express purpose of determining whether Mrs. Murphy was- so far competent as to be able to care for herself and her property, decided that she was not, and that a guardian is still necessary. That adjudication should have
2. "When the application for restoration was denied in
3. In the beginning of the hearing in department No. 1, upon an objection by counsel for the guardian, the court in ruling said:
“Of course, I cannot inquire into the legality of his authority as guardian; but I do not know what the petitioner expects to show here in support of this petition. It can only go that far, whether or not, as guardian of her person, he has gone so far with it as to amount to such detention as to deprive Mrs. Murphy of her personal liberty. * * * I will overrule the objection at the present, and will hear only the question as to whether or not the guardian has exceeded his authority as prescribed in the Code.” This declared intention to limit the investigation to a matter which would have been a perfectly proper subject of inquiry by a court having it regularly under consideration was apparently abandoned altogether, and the investigation made to compass the entire subject of the propriety or necessity of a guardian for Mrs. Murphy. Taken in connection with the order itself, these considerations disclose an arbitrary and unwarranted exercise of power, the result of which, if unchallenged, will involve the guardian in legal difficulties of the most serious character.
5. In the preamble to the order now under review, the court, in considering the circumstance that Mrs. Murphy is about 80 years old, said: “Even if this old lady’s mental horizon was partially or
The motion to quash is overruled. The order of the district court, made and entered in the habeas cor'tfas proceeding on February 5, 1915, is annulled.
Order annulled.