In re Erick Erickson

• Decision Date: 12 April 1919
• Docket Number: 21,864
• Citation: 104 Kan. 521,180 P. 263
• Parties: In re ERICK ERICKSON, a Feeble-minded Person (J. E. ERICKSON, Appellant)
• Court: Kansas Supreme Court

180 P. 263

104 Kan. 521

In re ERICK ERICKSON, a Feeble-minded Person (J. E. ERICKSON, Appellant)

No. 21,864

Supreme Court of Kansas

April 12, 1919

Decided January, 1919.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

FEEBLE-MINDED PERSON--Inquest--Verdict Not Feeble-minded--No Appeal by Informant. A person who files an information in the probate court that his father is feeble-minded and incapable of managing his affairs is not entitled to appeal from a finding and decision that his father is not feeble-minded.

Z. C Millikin, G. A. Spencer, and A. R. Buzick, all of Salina, for the appellant.

C. W. Burch, B. I. Litowich, and LaRue Royce, all of Salina, for the appellee.

OPINION

JOHNSTON, C. J.:

Has an informant the right to appeal from an order of the probate court approving the verdict of a jury finding that a subject of inquiry is not feeble-minded? A negative answer was given in the district court, and the informant complains of the ruling.

The inquest was initiated by J. E. Erickson, who alleged in his affidavit that Erick Erickson was feeble-minded, incapable of managing his affairs, and he asked that a guardian of the person and estate of Erick Erickson be appointed. He did not state his relationship to or interest in Erick Erickson, but in one of the papers in the attempted appeal it is incidentally mentioned that he is a son of the respondent. The statute provides for an appeal from a decision of the probate court by or on behalf of the respondent, when the finding and decision is against him. (Gen. Stat. 1915, § 6101; Ald v. Appling, 89 Kan. 340, 131 P. 569.) It also provides for an appeal from a final order or decision in any matter arising under the act, upon the terms and conditions that appeals are allowed in the act respecting executors and administrators. (Gen. Stat. 1915, §§ 4675, 6131; Ald v. Appling, supra.)

It is contended that the finding that the respondent was not feeble-minded was not a final order, and that therefore no appeal is authorized. It is argued that the proceeding is not an action between adverse parties, but a mere inquest as to the mental state of the respondent and is made for his benefit; that the probate judge is not bound to call a jury upon the filing of an information alleging mental incompetency, but only in case he is satisfied that there is good cause for making an inquiry. (Laws 1917, ch. 165.) As showing a lack of finality, attention is called to the provision that the finding of a jury in such an inquiry may be set aside by the court for just cause, and another jury impaneled, until two juries concur, in which event the last may not be set aside (Gen. Stat. 1915, § 6102), and that even where a finding of incompetency is made, the judge is not required to appoint a guardian of the person or estate unless he is convinced that it is necessary, and further that a new proceeding may be started and a new complaint alleging incompetency may be filed by any person at any time after the first inquiry. It is further argued that the things enumerated and the fact that the informant herein might have asked for a finding by another jury, or have instituted a new inquiry, all argue that there is no finality in the order made, and therefore no appeal lies. Assuming that a finding against incompetency may in some cases have the element of finality, as, for instance, when costs are adjudged against the informant, it is clear that the appellant was not entitled to prosecute an appeal from the finding and order made herein. What is his grievance? What interest of his was prejudiced by the finding that his father was of sound mind? No costs were assessed against him, and he had no pecuniary or other substantial interest in the inquest any more than if it had been instituted by a stranger. The general rule is that the only party who may appeal from an order or judgment of a court is one whose substantial rights have been prejudiced by the decision, and since the appellant has not lost anything nor suffered a substantial injury by the ruling, he has no right of appeal. (Studabaker et al. v. Markley, 7 Ind.App. 368, 34 N.E. 606.) He is not a party to the proceeding in the ordinary sense and cannot control the inquiry, and hence...