In re Solberg
| Decision Date | 11 April 1927 |
| Docket Number | No. 5936.,5936. |
| Citation | 51 S.D. 246,213 N.W. 9 |
| Parties | In re SOLBERG. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Roberts County Court; G. G. Lasell, Judge.
In the matter of the guardianship of Kristian Simenson Solberg, insane. From a judgment adjudging Ole P. Rask, guardian, guilty of contempt, he appeals. Reversed.Babcock & Babcock, of Sisseton, for appellant.
Jorgenson & Anderberg, of Sisseton, for respondent.
This is an appeal from a judgment of the county court of Roberts county, adjudging the appellant, Ole P. Rask, to be guilty of contempt and sentencing him to pay a fine of $50 and costs in the sum of $35.80.
The facts as shown by the record are as follows:
In 1911 the county court of Roberts county appointed Rask to act as guardian of the estate of Kristian Simenson Solberg, insane. Rask qualified as such guardian, and on February 25, 1925, his letters of guardianship were still in force and unrevoked. On that day one Martha C. Lewis filed in the said county court a verified petition alleging that the said petitioner was an heir at law and next of kin of Kristian Simenson Solberg, insane, and interested in his estate. The petition further alleged that Rask as guardian had sold certain real property belonging to said estate and had failed to account to the court for the proceeds of such sale. And, upon information and belief, the petitioner alleged that Rask, as such guardian, had in his hands large sums of money belonging to the estate for which he had failed to account, and that said Rask had removed from the state of South Dakota and was no longer a resident of said state. And the petition prayed that the court issue a citation requiring Rask to appear and account and that he be removed from the office of guardian and some proper person be appointed as guardian, and Rask be required to pay over and deliver all property in his hands belonging to the said estate.
Upon filing of said petition the county court entered an order suspending Rask's authority as guardian and also issued a citation, beginning with the word “Greeting,” but not directed to any one by name, and reciting that:
“You are hereby notified that an order has been made and filed in this court suspending you as guardian.” “And you are hereby cited and required to appear before the judge of this court [at a stated place] on the 10th day of March, 1925, at 10 o'clock in the forenoon of said day, to show cause, if any you have, why an order should not be made removing you as guardian of said incompetent, and revoking the letters of guardianship heretofore issued to you, and that you be then and there required to account for all property in your hands as such guardian belonging to the said incompetent.”
And the citation further provided for its service upon Ole P. Rask, guardian, by publication and mailing. And in this provision alone is Rask's name mentioned in the citation.
On March 10, 1925, Rask did appear in response to the citation, but returns signed by the sheriff of Brown county, S. D., certified that both the citation and the order of suspension were served upon Rask personally within said Brown county on February 26, 1925.
Thereupon, and without the filing of any affidavit or complaint charging Rask with any acts constituting contempt, the county court issued an order or attachment directing that Rask be arrested and brought before that court to show cause why he should not be adjudged guilty of contempt “for failing,...
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