Smith v. Bruner's Guardianship
| Decision Date | 31 March 1925 |
| Docket Number | 12570. |
| Citation | 238 P. 448,111 Okla. 93,1925 OK 256 |
| Parties | SMITH v. BRUNER'S GUARDIANSHIP |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 14, 1925.
Syllabus by the Court.
Article 4, c. 12, of the Compiled Laws of 1921, confers upon the superior court of Creek county concurrent jurisdiction with the district court in appeals from the county court in probate matters, and an appeal from the county court of said county to said superior court, upon questions of both law and fact, gives the superior court jurisdiction in a trial de novo to determine all questions of fact and law arising within the issues of fact as made by the pleadings filed in the county court upon which the cause was tried.
Upon an appeal to this court from the findings and judgment of the superior court of Creek county, in a probate matter upon appeal from the county court, this court will examine the record, but will not reverse the case, unless it is determined that the findings and judgment of the superior court is against the clear weight of the evidence.
Additional Syllabus by Editorial Staff.
In Const. art. 7, § 16, that, in cases arising under probate jurisdiction of county court, appeals may be taken to district court, where cause shall be tried "de novo" on questions of both law and fact, "de novo" means in same manner, with same effect, and upon same issues tried in county court.
Commissioners' Opinion, Division No. 4.
Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
Suit by Lena Smith to remove C. A. Popkin as guardian of Jesse Bruner, a minor. From an order of the Creek county court removing the guardian, he appealed to the superior court of such county, and from its judgment reversing the order of the county court and restoring defendant as guardian, plaintiff appeals. Affirmed.
Burt & Keenan, of Sapulpa, for plaintiff in error.
W. H O'Dell and Hughes & Foster, all of Sapulpa, for defendant in error.
The parties will be referred to in this opinion as plaintiff and defendant as they were designated in the trial court.
On the 29th day of January, 1917, the defendant C. A. Popkin was appointed guardian of the person and estate of Jesse Bruner a minor, by the county court of Creek county. On the 17th day of February, 1921, Lena Smith, the mother of said ward, filed a petition in said county court, charging: (1) That said guardian had allowed and paid out of the funds of the estate of said ward certain bills for accessories and supplies for an automobile belonging to said ward, which accessories and supplies said ward had not received; (2) that said guardian had leased a building belonging to said ward to persons who permitted gambling and the sale of liquor therein, and praying that said guardian be removed.
It appears from the record that a trial was had upon this petition in said county court on the 28th day of February 1921, and said court found and decided that said charges were sustained by the evidence, and entered an order removing said guardian.
The guardian appealed from this order to the superior court of Creek county on questions of both law and fact. And on the 12th day of April, 1921, said cause was tried de novo in said superior court. On the trial in the superior court the evidence offered on the part of the plaintiff tended to show that the ward owned an automobile, and that the guardian arranged with a garage company to furnish repairs and supplies for said automobile to said ward, and that various bills were presented by said garage company in which the guardian was charged with gasoline, oil, accessories, and repairs for said automobile alleged to have been furnished to said ward. It was admitted by the plaintiff that the ward received the repairs and accessories as charged in said bills, but denied that the ward received the gasoline and oil. It was also shown that a building belonging to said ward was leased by the guardian to the Owls Club of Sapulpa, and that at one time said building was locked up by an order of the district court as a nuisance. The proof further shows that after said building was so locked up the defendant, as such guardian, applied to said court and obtained a modification of said order and permission to release said building to said Owls Club, and that in this lease the defendant inserted a provision that the lease should be forfeited in the event the lessee permitted liquor to be sold or gambling to be carried on in said building.
The defendant testified, in substance, that he had no knowledge that said building was being used for unlawful purposes until said order of the district court; that afterwards he made the lease above referred to pursuant to said order as modified. The defendant further testified that he directed the garage company to furnish gasoline, repairs, and supplies for said automobile, and that he paid said bills, believing that the ward had received said gasoline, oil, and supplies. There was no evidence offered tending to show mismanagement of the estate; and the superior court found, and we think properly, that the evidence wholly failed to sustain the allegations of the petition, and found all of the issues in favor of the plaintiff and against the defendant, and entered a judgment and decree, which in effect reversed the order of the county court and restored the defendant to his powers as such guardian.
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