Linderholm v. Walker
| Decision Date | 09 March 1918 |
| Docket Number | 21,411 |
| Parties | JUSTUS B. LINDERHOLM, Plaintiff, v. J. W. WALKER, as Probate Judge of McPherson County, Defendant |
| Court | Kansas Supreme Court |
Decided January, 1918.
Original proceeding in mandamus.
Writ denied and case dismissed.
SYLLABUS BY THE COURT.
1. MANDAMUS -- Approval of Appeal Bond by Probate Judge. The supreme court cannot require a probate judge to approve an appeal bond which does not satisfy the probate judge as to its sufficiency, when the judge's good faith is not challenged.
2. SAME--Writ Should Not Issue. Some other simple reasons showing why writ of mandamus should not issue, discussed.
3. INSANE PERSON--Cannot Conduct Litigation. A person who has been adjudged insane, and who is under guardianship, cannot conduct litigation without the supervision, control, and protection of his guardian.
4. SAME. When it clearly appears that a person who has been adjudged insane is the plaintiff in an action, and that he is seeking to maintain that action independently of his guardian and without the approval of the latter, the action should be dismissed.
Justus B. Linderholm, of Topeka, pro se.
Frank O. Johnson, G. F. Grattan, and J. M. Grattan, all of McPherson, for the defendant.
This is an application for an alternative writ of mandamus, to require the probate judge of McPherson county to approve an appeal bond in a certain matter which the petitioner seeks to appeal to the district court from the judgment of the probate court, and to certify it to the district court. The particular grievance which the petitioner desires to have reviewed by the district court was the question of the propriety of an order of the probate court discharging Mrs. Agnes Ekblad as executrix of her deceased husband's estate, the latter in his lifetime having been guardian of the estate of the petitioner. The probate judge disapproved the bond and refused to certify the matters to the district court.
In behalf of the probate judge, an answer has been filed in which it is shown that the petitioner was adjudged insane some years ago; that thereafter, in May, 1909, the petitioner's mother was appointed and qualified as his guardian, and that she died in a short time; that John Ekblad was then appointed as guardian for the petitioner, and he qualified and acted as such until his death in 1914; and that Frank O. Johnson was afterwards appointed and qualified as guardian of the petitioner, and still is the legal guardian of the petitioner, and is in possession of the petitioner's property. The answer continues:
. . . .
"That the said alleged appeal bond is insufficient, and in the judgment of the said probate court the sureties are not responsible, and it is not in the judgment of said probate court a good and sufficient appeal bond."
To this answer the plaintiff has filed a demurrer, which has the same effect as a motion to quash or a motion for judgment on the pleadings. In other words, for the purpose of testing the sufficiency of the answer, the demurrer admits the truth of the matters pleaded therein.
On the mere statement of the case which we have outlined above, so many sound judicial reasons why the writ should not issue come to mind that we shall limit ourselves to indicating only a few of them, and choose from among those which are simplest, and which may be most readily understood.
A writ of mandamus never issues from a higher court to a lower court to control the discretion of the latter. Here the probate judge exercised his discretion--his best judgment--in holding that the appeal bond was...
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