Morton v. Sims

• Decision Date: 30 September 1879
• Citation: 64 Ga. 298
• Parties: Morton, guardian. v. Sims.
• Court: Georgia Supreme Court

64 Ga. 298

Morton, guardian. v. Sims.

Supreme Court of the State of Georgia

(September Term, 1879.)

Guardian and ward. Ordinary. Jurisdiction. Lunatic. Service Judgment. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1879.

On February 10, 1879, William H. Sims, of Lowndes county, Miss., and S. A. M. Morton and John B. Morton, *of Oglethorpe county, Georgia, filed their petition in the court of ordinary of the county last aforesaid, representing that James S. Sims, of said county, on account of imbecility from infirm health and old age was incapable of managing his estate, and liable under the laws of Georgia to have a guardian appointed in his behalf; that they were the three nearest adult relatives of said imbecile residing in this state to whom notice could be given under the statute. The premises considered, they prayed that a commission be issued to eighteen discreet and proper persons, one of whom should be a physician, requiring any twelve of them, including the physician, to examine by inspection said James S. Sims, and to examine witnesses on oath if necessary as to his condition and capacity to manage his estate, and to make their return touching said inquiry as required by law, and that upon such return being made in accord with the allegations of this petition, that the court would appoint said John B. Morton guardian, etc.

On the same day the ordinary issued a commission as prayed for. On the succeeding day the commissioners reported their finding to be in accordance with the allegations of the petition. Whereupon the ordinary passed an order reciting the foregoing report, and appointing John B. Morton guardian of the person and property of said James S. Sims, upon his giving bond and security in the sum of $20,000.00, and taking the oath required by law.

On March 5th thereafter, James S. Sims moved that the judgment appointing the guardian be sct aside on the following grounds:

1. Because the movant was never served with a copy of the proceedings on which said judgment was based, nor did he waive service, or authorize any one to make such waiver for him,

2. Because the petition does not bear date ten days before the same was heard and determined.

3. Because no guardian ad litem was appointed by the courtto represent movant, when the pleadings show that *his three nearest adult relatives were the petitioners, and as such proceeding against him.

4. Because the record does not show that the movant wasexamined by inspection as required by law, or in any other manner examined by the commission or court.

5. Because the order of the ordinary does not recite a compliance with the requisition of the law as to notice of the proceedings, nor does the record anywhere show such compliance.

Service of the motion was had, and by consent it was heard on April 14th following. At the hearing, petitioners prayed that the judgment rendered on February 11 past, be so amended as to state the fact that the said James S. Sims was then and there present at the trial, and represented by Samuel Lumpkin, an attorney of this court, as his counsel, and that said counsel consented to said judgment. The amendment was ordered over the objection of counsel for movant. The ordinary then overruled the motion to set aside the judgment appointing the guardian. From this decision James S. Sims appealed to the superior court. On the hearing in that tribunal, the judgment of the ordinary was reversed, and the appointment of the guardian ordered vacated. To this judgment Morton, guardian, excepted.

Samuel Lumpkin; W. G. Johnson; H. K. McCay, for plaintiff in error.

McWhorter Bros.; Jno. C. Reed; J. T. Oliver; Phil. Cook Jr., for defendant.

BLECKLEY, Justice.

1. The proceedings to put Dr. Sims under guardianship did not take place in the court of ordinary proper. In issuing the commission, and in appointing the guardian, the ordinary exercised a special and limited jurisdiction, regulated by sections 1855 and 1856 of the Code. The proceedings which these sections provide for are swift and summary, *and must therefore be construed strictly. They should show on their face such facts, especially touching the giving of notice, as will authorize the legal appointment of a guardian. This degree of strictness holds as to all courts of limited jurisdiction. 9 Ga., 185; 12 Ib., 324; 13 Ib., 68. In ruling upon the motion to set aside the judgment appointing a guardian for Dr. Sims, the question is, whether upon the face of that judgment, reading it in connection with the balance of the record to which it belongs, enough appears to show that it was duly rendered. The trial is to be by inspection, and consists only in comparing the judgment and its preliminaries with the law.

2. After declaring that ordinaries may appoint guardians for idiots, lunatics, persons insane or deaf and dumb, habitual drunkards, and for "persons imbecile from old age or other cause, and incapable of managing their estates, " the Code goes on to point out the mode of procedure as follows: sec. 1855. "Upon the petition of any person on oath, setting forth that another is liable to have a guardian appointed under the provisions of this article, the ordinary, upon proof that ten days' notice of such...