In re Warner's Estate

Citation288 N.W. 39,137 Neb. 25
Decision Date27 October 1939
Docket Number30538.
PartiesIN RE WARNER'S ESTATE. v. WARNER. RICHARDSON
CourtNebraska Supreme Court

[Copyrighted Material Omitted]

Syllabus by the Court.

1. A jury trial cannot be demanded, as a constitutional right, in proceedings for the appointment or removal of guardians, in the absence of a statute providing therefor.

2. In proceedings not within the application of the constitutional provisions, the fact that an appeal is allowed does not entitle parties to demand a jury trial.

3. The interposition of a jury in trials of appeals from the probate courts to the district courts is mandatory only when the inherent nature of the issues to be determined, in the light of constitutional and code provisions or the express terms of statutes which may be involved, so require.

4. The interposition of a jury in trials of appeals from the county courts of this state to the district courts thereof, where there is involved only the appointment or refusal to appoint guardians for alleged incompetent wards, is a matter of discretion and not a matter of right.

5. In suits not triable by jury as of right, a verdict of a jury is advisory only.

6. In the instant case, the issues involved not being triable to a jury as a matter of right, the verdict returned therein in the district court is not to be deemed conclusive, but as advisory only, and the ultimate responsibility for the determination of the facts involved rests with the trial judge and not with the trial jury.

7. In this proceeding, in this court, reversible error cannot be predicated on the admission of incompetent or immaterial evidence, or upon instructions given or refused by the trial court. The trial court is presumed to have disregarded evidence improperly received, and instructions given are not reviewed in the appellate court.

8. " A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law. * * * When a judicial order, judgment or proceeding is offered in evidence in another proceeding, an objection thereto on account of judicial errors is a collateral attack." Van Fleet, Collateral Attack on Judicial Proceedings, 5.

9. " In a proceeding for the appointment of a guardian for alleged incompetency because incapable of caring for his property, where the person is a party to the proceeding and has not been adjudged insane, his admissions, declarations, and showing of facts inconsistent with mental soundness are admissible as substantive evidence on the issue of sanity." (And this same rule was applied to the decision of the issue of competency.) Keiser v. Keiser, 113 Neb. 645, 204 N.W. 394.

10. " ‘ The sufficiency of the petition,' in a court of record, ‘ is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will not render the judgment subject to collateral attack.' Taylor v. Coots, 32 Neb. 30, 48 N.W. 964, 29 Am.St. Rep. 426." Brandeen v. Lau, 113 Neb. 34, 201 N.W. 665.

11. " The omission of an allegation of a jurisdictional fact, in a judgment of a court of record, is cured by proof of the existence of such fact, and where, in such court, a judgment is rendered, and is silent with respect to a jurisdictional fact, it will be presumed that the court acted within its jurisdiction. Woerner's American Law of Administration (3d ed.) secs. 143-145." Brandeen v. Lau, supra.

12. " Jurisdiction of the subject-matter, in a court of record, is to be tested by the authorized extent of the powers of the court in respect of the cause of action before it. Woerner's American Law of Administration (3d ed.) sec. 144." Brandeen v. Lau, supra.

13. " In a court of record, it is not essential that every jurisdictional fact appear upon the face of the record, and if a petition sets out facts sufficient to show a cause of action within the general jurisdiction of the court, and no facts appear upon the face of the record establishing that no jurisdiction exists, all presumptions are resolved in favor of the power of the court to act." Brandeen v. Lau, supra.

14. The rules as to collateral attack are applicable with full force to proceedings in rem and quasi in rem, such as adjudications of insanity and determinations of mental incompetency.

15. Evidence in the record examined, and held sufficient to sustain the judgment and findings of the district court.

SIMMONS, C. J., dissenting.

Appeal from District Court, Polk County; Landis, Judge.

Proceeding in the matter of the estate of Leo M. Warner, an alleged incompetent, wherein Robert Richardson and Hazel Richardson sought to have a guardian appointed for the purpose of taking charge of the property of Leo M. Warner. From an adverse judgment of the county court, Leo M. Warner appealed to the district court. From an adverse judgment of the district court, Leo M. Warner appeals.

Judgment affirmed.

Kirkpatrick & Dougherty, of York, for appellant.

W. W. Norton, of Osceola, and O. S. Gilmore, of York, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

EBERLY Justice.

Robert Richardson and Hazel Richardson filed in the county court of Polk county a petition, alleging that " Leo M. Warner, an inhabitant of and residing in Polk county in the state of Nebraska, is mentally incompetent to have the charge and management of his property; " that said incompetent person is possessed of personal property situated in Polk county of the value of about $4,500 and is also the owner of an interest in real estate situated within the state of Nebraska of the value of about $300; that said incompetent person has minor children dependent upon him for support, and it is necessary for the welfare of said incompetent person and his dependent children that a guardian be appointed for the purpose of taking charge of the property, etc. The petition also sets forth that petitioners are relatives of said incompetent person, being a nephew and a niece of him, and prays for the appointment of E. C. Nordlund as such guardian. Notice of hearing on this petition was served on Leo M. Warner, Eva B. Warner, Floyd M. Warner, Dean M. Warner and Herbert K. Richardson. A demurrer was thereupon filed to said petition by Leo M. Warner, challenging the capacity of the plaintiffs to sue, the jurisdiction of the county court to hear the proceeding, and the sufficiency of the petition to state a cause of action. Thereupon Leo M. Warner filed an answer which carried forward the challenge to the capacity of plaintiffs to sue and to the jurisdiction of the county court, and denied generally the allegations of the petition. On August 16, 1937, being the date to which the hearing on said matter was continued by consent and agreement of parties, the county court overruled the demurrer of Leo M. Warner, also adjudged that " due and legal service has been had on all parties herein as provided by law, and that the facts set out and alleged in the petition filed herein are true and that said Leo M. Warner is mentally incompetent to have the charge and management of his property," etc. Further, the county court appointed E. C. Nordlund as guardian of said Leo M. Warner. In connection with this judgment there appears a stipulation that service of process was lawfully obtained as provided by law upon Leo M. Warner, the alleged incompetent, herein, and the next of kin of said Leo M. Warner. E. C. Nordlund thereupon qualified as such guardian and gave his official bond which was duly approved on August 26, 1937.

Leo M. Warner appealed from the judgment so entered, and on October 6, 1937, petitioners Robert Richardson and Hazel Richardson filed in this cause in the district court for Polk county, Nebraska, their petition on appeal which contained the essential averments originally set forth in the petition filed by them in the county court of Polk county, Nebraska. To this petition on appeal, Leo M. Warner answered by a general denial. The issues thus made up were submitted by the district court to a jury, which, after hearing the evidence, returned as their findings and verdict " That Leo M. Warner is now incompetent to have charge and management of his property." Thereupon Leo M. Warner filed his motion for a new trial which was by the district court overruled, and thereupon a judgment was entered for petitioners as prayed. This judgment recites, in part, viz.:

" Now, on this 14th day of July, 1938, this matter came on for hearing upon said motion for new trial and for a consideration of the advisory verdict of the jury and after due consideration, the court finds that said motion for new trial should be overruled, and an order and decree entered herein in accordance with the advisory verdict returned by the jury in said matter; further, the court finds that the allegations set forth in the petition herein are true, and finds generally for the petitioners; further the court finds from the evidence submitted that the said Leo M. Warner is now incompetent to have charge and management of his property, and that the appeal herein should not be sustained, and guardianship affirmed, and the case remanded to the county court for further proceedings.

It is therefore, ordered, adjudged and decreed by the court, that the motion for new trial filed herein by Leo M. Warner be and the same is hereby overruled; that Leo M. Warner is now incompetent to have the care and management of his property and estate; that he should have a guardian to manage and handle his property and estate, and that the appeal in said guardianship matter to this court be not sustained, and that the guardianship findings and decree of the county court...

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