State ex rel. Kelly v. Probate Court of Ramsey County
| Decision Date | 26 April 1901 |
| Docket Number | 12,491 - (57) |
| Citation | 85 N.W. 917,83 Minn. 58 |
| Parties | STATE ex rel. PATRICK KELLY v. PROBATE COURT OF RAMSEY COUNTY and Another |
| Court | Minnesota Supreme Court |
Writ of certiorari issued from the district court for Ramsey county to the probate court of that county to review an order made in the matter of the estate of Patrick Kelly incompetent, denying his application for restoration to capacity. In the district court the case was tried before O B. Lewis, J., who found in favor of relator and directed that the order be vacated and the proceedings remanded to the probate court for disposal. From a judgment entered as directed, St. Paul Trust Company, guardian, appealed. Affirmed.
Order of Probate Court -- Certiorari.
An order of a probate court, made under G.S. 1894, § 4553, upon the petition of a person under guardianship for incompetency to be restored to capacity, is to all intents and purposes a judgment, and may be reviewed by certiorari, no appeal from such order being provided by statute.
Removal of Guardian -- Appeal.
Such an order, though it result in the removal of the guardian, is not an order removing the guardian, within the meaning of G.S. 1894, § 4665, subd. 2, and is not appealable.
Return of Evidence -- Certificate of Court -- Failure to Object.
The writ of certiorari in this case commanded the probate court to return to the district court all the evidence offered at the hearing before it. Appended to the return is what purports to be such evidence. No point was made in the district court that all the evidence was not returned, and the cause was heard and considered in that court without objection to the return, or to the certificate attached to it; and it is held that, although the certificate to the return does not state that all the evidence was returned to the district court, it will be presumed that the probate court complied with the command of the writ of certiorari, and returned it all. Payson v. Everett, 12 Minn. 137 (216), followed.
Evidence.
Evidence examined and considered, and held not to sustain the order of the probate court.
C.D. & T.D. O'Brien and Harvey Officer, for appellant.
Egan & Storey, for respondent.
In 1898 respondent, Kelly, was, on the petition of his son, by reason of an insane and imperfect condition of his mental faculties, adjudged incompetent to have the charge and management of his property and affairs, and the St. Paul Trust Company was duly appointed his guardian. In March, 1900, one Webb, a friend of Kelly, filed a petition under G.S. 1894, § 4553, asking therein that the ability and competency of Kelly to take charge of his business affairs be judicially determined, and that he be "restored to capacity." After due hearing in the probate court, the prayer of the petition was denied, and the proceedings were removed to the district court by certiorari. The district court, after hearing, upon the return of the probate court, overruled and vacated the order of that court, ordered the proceedings remanded for disposal according to law, and the guardian appealed to this court. The assignments of error present several questions, which will be considered, or those deserving special mention, in the order presented in appellant's brief.
1. It is contended by the appellant that the order of the probate court denying the petition of Kelly was a mere order for judgment, and not reviewable on certiorari. The statute under which the order was made provides:
A judgment of a court is the final adjudication or determination of the merits of an action or proceeding. An order of the probate court granting or refusing an application of an incompetent person to be restored to capacity after hearing on the merits is a final adjudication of the application, and to all intents and purposes a judgment; there being no statute requiring the entry of a formal judgment. It is, at least, in the nature of a judgment, within the meaning of G.S. 1894, § 4414, subd. 7.
The statute under which this proceeding was conducted provides for no particular form of judgment or order, and any order, whatever its form, finally disposes of the proceeding. Probate orders of a nature similar to the one in the case at bar have been held judgments in other states. Wilks v. Murphy, 19 Mo.App. 221; Jameson v. Barber, 56 Wis. 630, 14 N.W. 859; Mitchell v. Mayo, 16 Ill. 83; Johnson v. Gillett, 52 Ill. 358. All probate orders are not judgments, however. Orders appointing administrators, orders for hearing on intermediate petitions, and similar ones, are interlocutory, do not finally dispose of the proceedings, and are not judgments in any sense of the word. But an order such as that here under consideration, which puts an end to the proceedings, and finally determines the merits thereof, is in the nature of a judgment, with all the force and effect of such, and may, where no provision for appeal is made by statute, be reviewed on certiorari.
2. The second proposition urged by appellant is that the order in question, being in effect one removing the guardian, is appealable under G.S. 1894, § 4665, subd. 2, and that certiorari will not lie to review it. This statute provides for an appeal from probate to district court from an order appointing or removing a guardian, and it is contended that, as the result of an application of the nature of this one is the termination of the guardianship, the order is, in effect, one of removal, and appealable. We do not concur in this contention. The statute cannot be construed as broadly as counsel would have it. The clear intention of the statute is to provide for appeals from orders appointing or removing a guardian, made in proceedings instituted for that express purpose, and not from orders which may result in such removal.
3. The writ of certiorari commanded the probate court to return to the district court all the evidence, orders, and proceedings had or taken before it. The return of the probate court contains the petition on which the proceedings are founded,...
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