Guardianship of Kelley, In re
| Court | United States Court of Appeals (Ohio) |
| Writing for the Court | GUERNSEY; MIDDLETON, P. J., and YOUNGER |
| Citation | 1 Ohio App.2d 137,204 N.E.2d 96 |
| Parties | , 30 O.O.2d 159 In re GUARDIANSHIP OF KELLEY. |
| Decision Date | 29 February 1964 |
Page 137
Page 138
[204 N.E.2d 97] Petri & Hottenroth, Galion, for appellant Mary Kathryn Ryan, guardian.
Scanlon, Berger & Garner, Crestline, for appellee Grace Thomas, next friend.
GUERNSEY, Judge.
This is an appeal on questions of law by Mary Kathryn Ryan from an order of the Probate Court of Crawford County terminating her guardianship of Veronica C. Kelley, an alleged incompetent, pursuant to a motion filed by Grace Thomas as the next friend of such ward, claiming that one 'Marion Earnshaw, a cousin of Veronica C. Kelley, is a next of kin and is and was at the time of the appointment a resident of Crawford County, Ohio,' 'but was not given notice of the application for the appointment of a guardian.'
Following hearing and consideration the Probate Court in its journal entry of judgment found 'that said motion is well taken and thereby sustains the same' and ordered, adjudged
Page 139
and decreed that the 'guardianship of Veronica C. Kelley be vacated and held for naught,' etc. The Probate Court made no specific finding as to whether Marion Earnshaw was a next of kin of the alleged incompetent or as to whether she was known to reside in Crawford County. No bill of exceptions has been filed in this court reflecting the evidence adduced on the hearing of the motion.The only assignments of error which the appellant has argued, and which we are thus required to consider, are as follows:
'1. The Probate Court erred in entertaining the motion of Grace Thomas as next friend.
'2. The Probate Court erred in holding that the appointment of guardian was void for failure to notify a cousin resident of the county.'
The first assignment of error presents the question of whether the guardianship of an adult incompetent may be terminated under the provisions of Section 2111.47, Revised Code, pursuant to motion of a person claiming no relationship to the ward, or her estate, except as the next friend of the ward.
In pertinent part, Section 2111.47, Revised Code, reads as follows:
'Upon reasonable notice to the guardian, to the ward, and to the person on whose application the appointment was made, and upon satisfactory proof that the * * * letters of appointment were improperly issued, the probate court shall order that the guardianship of an incompetent * * * [204 N.E.2d 98] terminate and shall make an appropriate entry upon the journal. * * *'
It will be observed that this section does not specify upon whose application such termination shall be had or, for that matter, that a formal application is necessary. However, assuming, without deciding, that an application is necessary and proper we should consider the pertinent provisions of several other sections of the Revised Code, namely:
Page 140
Section 2101.32, Revised Code.
'* * * The sections of the Revised Code governing civil proceedings in the court of common pleas shall govern like proceedings in the probate court when there is no provision on the subject in Chapters 2101. to 2131., inclusive, to the Revised Code.
'* * *.'
Section 2307.11, Revised Code.
'The action of an insane person must be brought by his guardian; * * *.'
Section 2307.13, Revised Code.
'The defense of an insane person must be by his legally appointed guardian, except that if there is no guardian, or he has an adverse interest, by a trustee for the suit, appointed by the court. * * *.'
In Row v. Row, 53 Ohio St. 249, 41 N.E. 239, the Supreme Court held that an imbecile cannot sue by next friend even if the guardian refuses to sue. However, that case was one in which the action purported to be for the benefit of the ward's estate and not against the guardian, and was not a proceeding such as the instant proceeding where the guardianship itself is sought to be...
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