Prante v. Lompe

• Decision Date: 18 October 1906
• Docket Number: 14,298
• Citation: 109 N.W. 496,77 Neb. 377
• Parties: WILLIAM PRANTE, GUARDIAN, v. OSCAR LOMPE, GUARDIAN
• Court: Nebraska Supreme Court

109 N.W. 496

77 Neb. 377

WILLIAM PRANTE, GUARDIAN, v. OSCAR LOMPE, GUARDIAN

No. 14,298

Supreme Court of Nebraska

October 18, 1906

ERROR to the district court for Nemaha county: WILLIAM H. KELLIGAR JUDGE. Affirmed.

AFFIRMED.

H. A Lambert and C. O. French, for plaintiff in error.

E Ferneau, Stull & Hawxby and W. F. Buck, contra.

EPPERSON, C. AMES and OLDHAM, CC., concur.

OPINION

EPPERSON, C.

On January 10, 1905, William Prante filed a petition in the county court of Nemaha county, alleging that Harmon Ray is a resident of that county, and is possessed of personal property of the value of $ 10,000 and the owner of real estate of the value of $ 100,000; that the mental powers of the said Ray have been failing for some time; and on account of mental disease and mental delusions he has become mentally incompetent to have the charge and management of his property; that said Ray has two children, aged respectively 14 and 8 years, and residents of Thayer county, Nebraska. The petition concludes with a prayer that a time may be fixed for hearing of said petition; that notice of its pendency be given to said Ray and his minor children, as required by law, and that on the hearing thereof A. M. Engles and John McConnell should be appointed guardians. The county court fixed January 27, 1905, for the hearing of said petition, and made an order requiring a notice thereof to be served upon said Ray and his children. On the day fixed for hearing, Ray appeared with his counsel and asked that the case be continued. This request was granted, and the hearing adjourned until February 28, at 10 A. M. On February 28, at 45 minutes after 8 o'clock in the forenoon, Ray and the petitioner, Prante, appeared and asked that the petition be immediately heard. Ray stated in open court that he wished the litigation to cease; that he wanted a guardian appointed, and requested the appointment of Prante, and did not wish to await the arrival of his attorneys or to be represented by them. The court thereupon proceeded with the hearing; found for the petitioner, and appointed William Prante guardian. As shown by the record, the hearing was had and the judgment announced appointing a guardian to take charge of more than $ 100,000 worth of property, depriving the alleged incompetent person of his liberty to the extent of placing him under guardianship, all within the short space of 25 minutes. At 10 minutes after 9 A. M., J. S. Stull came into court and filed an answer, sworn to by Ray on the preceding day, and W. F. Buck came also and said that he was attorney for Oscar Lompe, the guardian of Ray's children, filed an answer in behalf of said children and their guardian, asked that the cause be opened, the judgment set aside, and the case retried. This request, on the objection of both Ray and Prante, was refused. Lompe then prepared and filed a formal motion asking that the findings and judgment of the court be set aside for irregularities in the proceedings, among other things alleging that the hearing was had in the absence of Lompe's and Ray's attorneys; that it was heard prior to the hour previously fixed, and that Ray had been wrongfully induced to consent to Prante's appointment. The court overruled the motion, and Lompe prosecuted error proceedings in the district court to reverse the judgment of the county court. Upon the hearing there, the district court found that the county court erred in hearing the case prior to the hour fixed and in refusing to hear the case on its merits on the request of Lompe. A judgment of reversal was entered, and the district court further ordered that the cause be retained for further proceedings. The petitioner, Prante, prosecutes error to this court.

Prante contends that the district court erred in reversing the judgment of the county court; that neither Ray's children nor their guardian were necessary parties to the proceedings in the county court and have no right to complain; that by the service of notice upon the alleged incompetent person the court acquired jurisdiction under the provisions of section 5384, Ann. St., and that therefore the court was not required to await the arrival of the hour appointed for the hearing to permit the next of kin to appear. Section 5384 supra, provides only for service of notice upon the alleged incompetent person. Under a very similar statute of Michigan the supreme court of that state has held that the petition for the appointment of a guardian was insufficient if it fail to allege the names of the next of kin (In re Bassett, 68 Mich. 348, 36 N.W. 97); and, further, that the next of kin were necessary parties, and that notice to them was indispensable to the court's jurisdiction (In re Myers,...