Schwarz v. Thoreson

• Decision Date: 11 February 1941
• Docket Number: No. 6722.,6722.
• Parties: SCHWARZ et al. v. THORESON.
• Court: North Dakota Supreme Court

70 N.D. 552

296 N.W. 420

SCHWARZ et al.

v.THORESON.

No. 6722.

Supreme Court of North Dakota.

Feb. 11, 1941.

Syllabus by the Court.

1. The general rule that a party may not appeal from an order or decree which has been entered with his consent has no application to an order appointing a guardian of the person or estate of an incompetent person.

2. Upon a general appeal from the County Court, issues of fact must be tried in the District Court upon evidence to be offered anew and not upon the record or transcript certified from the County Court.

3. A motion to the District Court to remand a record, on appeal from the County Court, to the County Court for correction upon a matter which could have no bearing upon the result of the appeal, presented a moot question and was properly denied.

Appeal from District Court, Richland County; W. H. Hutchinson, Judge.

Proceeding by Esther Schwarz and another against Anna Thoreson seeking the appointment of a guardian for the estate of Anna Thoreson upon the ground of alleged incompetency. From an order of the District Court denying a motion to remand the record to the County Court for correction, Anna Thoreson appeals.

Affirmed.

Forbes & Forbes and Johnson & Milloy, all of Wahpeton, for respondent and appellant.

Clifford Schneller, of Wahpeton, for petitioners and respondents.

BURKE, Judge.

In July 1940, respondents initiated proceedings in the County Court of Richland County, seeking the appointment of a guardian for the estate of the appellant Anna Thoreson upon the ground of alleged incompetency. After a hearing upon the petition, the County Court adjudged that the appellant “was incapable of taking care of herself or managing her property” and made its order appointing one Olaf Bjorke guardian of her estate. After the entry of this order, the attorneys who had represented Anna Thoreson at the hearing in County Court withdrew from the case and her present counsel were retained to appeal from said order to the District Court. After the appeal had been perfected, counsel discovered that the record on appeal disclosed that the following stipulation had been entered in the minutes of the County Court: “It is stipulated and agreed in open Court by the respective parties, that a Guardian for the estate of Anna Thoreson shall be appointed by the Court and that such Guardian shall be, first Selmer Edlund, if he will act, and if he will not act, then, Carl Gauslow, and if both refuse to act then such person as the Court may appoint under the evidence submitted.”

Upon making this discovery counsel immediately made their motion that the District Court remand the record to the County Court for correction, supporting their motion by affidavits stating that the stipulation above set forth was merely a tentative stipulation which had been dictated into the minutes by the judge of the County Court, but which had never been agreed to by the parties or their attorneys. Counter affidavits were filed by the respondents and after a hearing the District Court denied the motion. This appeal is from the order of the District Court denying that motion.

Respondents concede that the District Court had no power to correct the record and that if, upon such motion, an issue of fact as to whether the record was incorrect in any material matter had been presented, it would have been the duty of the District Court to remand the record to the County Court, to determine that issue of fact and to change or refuse to change the record in accordance with such determination. They assert, however, that the correction which appellant sought to have made was wholly immaterial; that upon a general appeal from the County Court all issues must be tried and determined anew in the District Court; that the...