LaWrence v. Thomas

• Citation: 84 Iowa 362,51 N.W. 11
• Parties: LAWRENCE ET AL. v. THOMAS.
• Decision Date: 28 January 1892
• Court: United States State Supreme Court of Iowa

84 Iowa 362

51 N.W. 11

LAWRENCE ET AL.

v.THOMAS.

Supreme Court of Iowa.

Jan. 28, 1892.

Appeal from district court, Franklin county; D. R. HINDMAN, Judge.

Appeal from an order appointing a guardian. Appellee having been appointed by the clerk of the district court guardian of the person and property of Fleta Thomas, a minor aged three years, appellants filed their petition under section 246, McClain's Code, asking the court to review the action of the clerk, to set aside said appointment, and to appoint one of them or some other suitable person. William Thomas having answered, the issues were submitted to the court, and, after full hearing, a judgment was entered “that the letters of guardianship be so modified that Susan le Valley be appointed guardian of the person of the minor, and that said William Thomas continue as guardian of the property of said minor, and that each party pay one-half of the costs.” From this judgment William Thomas appeals.Taylor & Evans, for appellant.

John W. Luke, for appellee.

GIVEN, J.

1. The first contention to be noticed is whether this case is triable de novo in this court. We understand from the record that the case was submitted in the district court, and tried upon oral testimony taken by the reporter, without any agreement of counsel or decision of the court as to the method by which it was tried. It is not a civil action, as defined in section 2505 of the Code, as it is not for the enforcement or protection of a private right or the prevention or redress of a private wrong. The controversy is as to who shall be appointed guardian. an appointment to which neither party has a private right. It is therefore a specialproceeding. Code, § 2506. Not being an action, it does not come under section 2508, as to what actions may and what must be prosecuted by equitable proceedings, nor is it of the class of actions specially provided for in the sections following. It is clearly within section 2513, which provides that, “in all other cases except in this Code otherwise provided, the plaintiff must prosecute his action by ordinary proceedings.” To harmonize all the sections on the subject, the word “action,” as here used, must be construed to include special proceedings, and not in the more limited sense, as defined in section 2505. To hold otherwise would leave the Code silent as to the mode of trying special proceedings. The expression, “in all other cases,” strengthens our conclusion. If it were “all other actions,” a different conclusion might be required. We are in no doubt but that the proceeding is only reviewable in this court upon the assignment of errors which appellant has made.

2. The first assignment is “that the court erred in separating the guardianship of the person from the guardianship of the property of the ward. The following sections of the Code must be considered in disposing of this question: “Sec. 2241. The parents are the natural guardians of their minor children, and are equally entitled to the care and custody of them. Sec. 2242. Either parent dying before the other, the survivor becomes the guardian. If there be no parent or guardian qualified and competent to discharge the duty, the district court shall appoint a guardian. Sec. 2243. If the minor has property not derived from either parent, a guardian must be appointed to manage such property, which may be either parent, if suitable and competent.” “Sec. 2246. Guardians appointed to take charge of the property of a minor must give bond,” etc. In construing these sections we must have in mind that the paramount purpose of the law is to protect and promote the interest of the wards because of their inability to care for themselves. We must also accept the undeniable fact that many persons, and even some parents, are not qualified and competent to discharge the duties of a guardian. It is equally true that a person may be eminently qualified and competent to have the care and custody of a minor, and yet neither qualified nor competent to manage his or her property, and vice versa. The policy of the law is to place the interests of those subject to guardianship in the care of the courts, and the courts are necessarily vested with a large discretion in the appointment of guardians, and in...