McClosky v. Plantz (In re McClosky)

• Decision Date: 19 May 1899
• Citation: 76 Minn. 323,79 N.W. 176
• Parties: In re GUARDIANSHIP OF McCLOSKY. McCLOSKY v. PLANTZ.
• Court: Minnesota Supreme Court

76 Minn. 323

79 N.W. 176

In re GUARDIANSHIP OF McCLOSKY.McCLOSKY

v.PLANTZ.

Supreme Court of Minnesota.

May 19, 1899.

Appeal from district court, Ramsey county; John W. Willis, Judge.

In the matter of the guardianship of Bridget E. McClosky, incompetent. On the application of the incompetent, the guardian, Mary Plantz, was without notice dismissed, and appeals from an order denying a motion for new trial. Reversed.

Syllabus by the Court

The probate court cannot legally remove a guardian without notice to him of the time and place of hearing on the matter of his removal, unless his residence is unknown. J. M. Hawthorne, for appellant.

C. D. & Thos. D. O'Brien, for respondent.

START, C. J.

Bridget E. McClosky was adjudged by the probate court of the county of Ramsey to be incompetent to care for herself or her estate, and on February 24, 1898, her daughter, Mary Plantz, the appellant herein, was by such court duly appointed guardian of her person and estate. On August 2, 1898, the probate court, on the application of the ward, made its order, citing and requiring the guardian to appear before the court on August 8, 1898, and file an account of her doings and expenditures as such guardian. The guardian appeared and filed her account. The probate court, in September, 1898, made an order removing the guardian, and directing her to file her final account. Such order was made by the court on its own motion, without notice to the guardian, and she appealed from the order to the district court of the county of Ramsey. The notice of appeal stated that the appeal was taken upon questions of law and fact. Thereupon the probate court made due return to the district court of a certified transcript of all of the paper, records, and proceedings upon which such order was based. When the cause came on for hearing in the district court, it appears from the record that counsel for the guardian dismissed the appeal as to questions of fact, but not as to the questions of law. It does not appear from the record that the trial court made any ruling or took any action as to this attempted amendment of the notice of appeal, or dismissal of a supposed part of the appeal. If it was in effect an attempted amendment of the notice of appeal, it was forbidden by statute. Gen. St. 1894, § 4669. However this may be, the attempted amendment or dismissal in no manner changed the status of the appeal, for the statute does not provide for taking an appeal from the judgments or orders of the probate court on questions of law and fact. Such was the case prior to the adoption of the Probate Code (Gen. St. 1878, c. 49, §§ 15-17), but the statute now in force (Gen. St. 1894, § 4668) simply provides that notice of appeal shall be served on the opposite party. The statement in the notice of appeal that it was taken on questions of law and fact was surplusage. The guardian, upon the return of the probate court, moved the district court to reverse the order removing her, which was denied and exception taken. The ward moved that the order be affirmed. The motion was granted, to which ruling the guardian excepted. The guardian appealed to this court from the order of the district court denying her motion for a new trial.

The question on this appeal is whether a probate court can legally summarily remove a guardian without notice to him and an...