Berry v. Berry
| Decision Date | 09 March 1897 |
| Docket Number | 17,962 |
| Citation | 46 N.E. 470,147 Ind. 176 |
| Parties | Berry v. Berry |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
Affirmed.
C. N Pollard and Swoveland & Pyke, for appellant.
Fippin & Purvis and Elliott & Overton. for appellee.
The appellee, by petition to the Tipton Circuit Court, sought to secure the appointment of a guardian for the appellant, an inhabitant of said county, upon an allegation that he was a person of unsound mind and incapable of managing his own estate. Upon the application of the appellee a change of venue was granted, over the objection and exception of the appellant, and the cause was certified to the Howard Circuit Court, wherein a trial was had, resulting in a finding and decree in favor of the petitioner and the appointment, by the latter court, over the appellant's objection and exception, of a guardian for him.
The right to a change of venue, and the power of the court to which the change was had to appoint a guardian are the only questions presented in this court.
The theory of the appellant is that the statute, section 2715 Burns' R. S. 1894, et seq., as amended, (Acts 1895, p. 205), affords a special remedy for the appointment of guardians for persons of unsound mind, and that as no provision is made by the statute for a change of venue, none was allowable. The argument is, that the provisions of the civil code as to change of venue, do not apply in the enforcement of such special remedy; that the proceeding contemplated is in no sense a "civil action" within the meaning of that term as employed in section 416 Burns' R. S. 1894, providing for a change of venue in any "civil action," nor as the same is employed in section 249, Burns' R. S. 1894, which provides that "There shall be no distinction in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action."
It is true, that the statute in question is special in that it relates to a special subject, and it is true that it does not define the procedure for the enforcement of the remedy given, further than to direct that it shall be by petition, addressed to the probate jurisdiction of the court, and by an answer in denial, filed by the clerk of such court, and that the "issue shall be tried as the issues in civil actions are tried, by the court or by a jury, to be impaneled," etc.
If it should be held that the requirement that the "issue shall be tried as the issues in civil actions are tried" has no reference to the general procedure provided by the civil code, and that the practice under the code would not otherwise obtain, the appellant's standing in this court would be in serious doubt since the special act does not provide for motions for new trials, bills of exceptions, or other method of reserving questions, nor for appeals, and these elements of procedure employed by the appellant, would be without sanction or authority.
In our opinion, however, it was the intention of the legislature, in the amendment to the statute, supra, to give recognition in such cases to the practice in civil actions, as the same is known under the code, excepting in those respects in which the practice is specially pointed out in the act.
If such intention were not manifest from the language of the act, the appellee contends that the general rule is, and was, when the amendment was enacted, that where a right or remedy is declared by special enactment, and the procedure for the enforcement thereof is therein also declared, that procedure must be observed, while if the procedure for the enforcement thereof is not so specially enacted, the rules of practice defined by the code are deemed to have been intended to apply. Lester v. Lester, Exr., 70 Ind. 201; Burkett v. Holman, 104 Ind. 6, 3 N.E. 406; Powell v. Powell, 104 Ind. 18, 3 N.E. 639; Crume v. Wilson, 104 Ind. 583, 4 N.E. 169; Evans v. Evans, 105 Ind. 204, 5 N.E. 24; Baker v. State, ex rel., 109 Ind. 47, 9 N.E. 711; Scherer v. Ingerman, Admr., 110 Ind. 428, 11 N.E. 8; Jaseph v. Schnepper, 1 Ind.App. 154, 27 N.E. 305; Burkett v. Bowen, 118 Ind. 379, 21 N.E. 38; Bass v. Elliott,, 105 Ind. 517, 5 N.E. 663, are cited in support of this contention.
The principal case relied upon by the appellant is that of Galbreath v. Black, 89 Ind. 300, where it is said that such proceeding as the present "is not, in any sense, an action within the meaning of...
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