Engle v. Yorks
| Decision Date | 27 July 1895 |
| Citation | 64 N.W. 132,7 S.D. 254 |
| Parties | ENGLE v. YORKS. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Upon appeal, upon questions of both law and fact, to the circuit court from the action of the probate court in the appointment of a guardian, the circuit court should retry the case and pronounce judgment.
2. In such case, the circuit court is not confined to simply affirming, reversing, or modifying the judgment of the probate court, as when the appeal is upon "questions of law alone."
3. When, upon such trial in the circuit court, questions of fact are submitted to a jury, whose answers, although only advisory, are referred to in the judgment of the court as having been "duly considered," without any intimation of dissatisfaction with them, and no other or different findings are found in the record, and it is not claimed that any such were made or that findings were waived it will be understood that the judgment was based upon such findings of the jury.
4. In such case, the question for review in this court is, could the judgment of the circuit court properly follow the findings so made?
5. In this case, held, that the facts so found by the jury did not justify or allow the judgment rendered by the court.
Appeal from circuit court, Brown county; A. W. Campbell, Judge.
Ward B Drury, having been appointed by the county, or probate court, guardian for Urso A. Engle, a minor, George S. Engle the father, appealed to the circuit court. Upon the trial of that appeal the circuit court appointed Mary H. Yorks as such guardian, and George S. Engle appeals. Reversed.
H. H. Potter and L. W. Crofoot, for appellant. Charles M. Stevens, for respondent.
In the county court of Brown county Adella D. Engle, the invalid mother of Urso A. Engle, a girl then 7 years of age, filed her petition for the appointment of a guardian for said minor. In the petition it was alleged that the father had deserted his family, consisting of said mother and child, and was an unsuitable person to have the care and custody of the girl. The petition, after setting out facts to justify the allegation of desertion and unsuitableness, asked the appointment of Ward B. Drury, a brother of the petitioner, as such guardian. Upon the hearing, the court made an order which, after reciting that: "It appearing from the evidence introduced upon said hearing and trial that said minor is of the age of seven years, and a resident of the county of Brown and state of South Dakota; and that Adella D. Engle, the mother of said minor child, is suffering from the last stages of consumption, and her death may be expected at any moment; and that George S. Engle is an unsuitable person to have the care and custody of the person and estate of said minor; and it further appearing necessary that a guardian for said minor be appointed, and that Ward B. Drury is the uncle of said minor, and is a suitable person to be such guardian,"--appointed said Drury the guardian of said child, under conditions not important to notice here. From this decision and judgment George S. Engle, the father, appealed to the circuit court, where, upon the trial, the court submitted certain interrogatories to a jury. The circuit court "in all things affirmed" the judgment of the county court, except that it appointed Mary H. Yorks as guardian of the child, instead of the said Ward B. Drury. From this judgment of the circuit court George S. Engle appeals to this court.
Appellant contends that the circuit court had no power to appoint a guardian; that its jurisdiction was appellate only, and went no further than a review of the action of the county court in appointing Drury. It might affirm, or it might reverse, and remit the case to the probate court, which alone has the power of appointment. This does not seem to us to be the procedure contemplated by our statute. It is true the original jurisdiction in such proceedings is in the county court. The proceedings can only be initiated there; but from the judgment of that court an appeal may be taken to the circuit court, and such appeal takes the case into that court, where it is to be dealt with and disposed of by a "trial de novo," to "be conducted in the same manner as if the case and proceedings had lawfully originated in that court, and the said appellate court has the same power to decide the questions of fact, which the probate court had," etc. Comp. Laws, § 5976. While there are no words in this section as in the homologous provision in the Michigan and Wisconsin statutes authorizing judgment in that court, we think the design and intent of our statute was the same. It would hardly be conceivable that the case should be sent to the circuit court for "trial de novo," with no power to pronounce judgment when it had determined the facts and their legal effect. The proceedings for and on appeal seem to be analogous to those on appeal from justice courts. The appeal may be on "questions of law alone," when the appellate court may "affirm reverse, or modify," or it may be "on questions of fact, or on questions of both law and fact," when a "trial de novo" shall be had in the appellate court. In the one case, a record is brought up for review; in the other, the case comes up to be retried. Upon this question, see Goss v. Stone, 63 Mich. 319, 29 N.W. 735; In re Leonard's Estate (Mich.) 54 N.W. 1082; Broadwater v. Richards (Mont.) 2 Pac. 544. We think, however, that the plain intent of said section 5976 is that, when the appeal is of such character as to require a "trial de novo," the procedure in the circuit court should be the same as though the "proceedings had lawfully originated in that court." Under that section, questions of fact may, in the discretion of the court, be submitted to a jury, or they may be tried by the court itself; but in some manner, as in other cases, questions of fact, upon which the character and extent of the relief granted must depend, should be formally settled, and the findings, either of the court or the jury, preserved, so that it may be known what questions are adjudicated, and upon what the final judgment rests. When, in such case, questions of fact are submitted to a jury, its verdict, it is generally held, is only advisory to the court. While this conclusion has been subject to some criticism, as not in harmony with the plan of our practice, it is without doubt the generally received rule. See Haynes, New...
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