State v. McCowen

• Decision Date: 06 May 1905
• Docket Number: 14,282
• Parties: THE STATE OF KANSAS v. JOHN MCCOWEN, as Guardian, etc
• Court: Kansas Supreme Court

80 P. 954

71 Kan. 497

THE STATE OF KANSAS v. JOHN MCCOWEN, as Guardian, etc

No. 14,282

Supreme Court of Kansas

May 6, 1905

Decided January, 1905.

Error from Franklin district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE PROBATE COURT--Appeal. Prior to the act of 1905 "providing for appeals from the probate courts in matters pertaining to lunatics and habitual drunkards" no such right existed.

C. C. Coleman, attorney-general, for The State.

William H. Clark, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The question involved is whether, prior to the act of 1905 "providing for appeals from the probate courts in matters pertaining to lunatics and habitual drunkards," there might be an appeal from the order of a probate court refusing to allow a claim against a lunatic's estate. The state of Kansas desired the allowance of a claim against John McCowen, as guardian of the person and estate of William H. Walker, an insane person, for a sum due it, for board, clothing and care furnished to the insane person in the Topeka state hospital. This claim was disallowed by the probate court. An appeal was taken to the district court, where it was dismissed because the statute, as it then was, made no provision for such appeal. The state claims that this action was erroneous, as the appeal was authorized by two sections of the statute.

Chapter 37 of the General Statutes of 1901 is entitled: "An act respecting executors and administrators, and the settlement of the estates of deceased persons." Section 188 of that chapter provides for appeals from the decision of the probate court to the district court in twelve specified cases, each of which relates to matters within the jurisdiction of the probate court as conferred in said chapter; then follows this general language: "And in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction." It is claimed that inasmuch as this chapter and the one concerning lunatics and drunkards took effect upon the same day they are in pari materia, and this general provision for appeals must be carried over to matters arising under the latter act. We do not think this construction a proper one. Evidently this general clause, following as it does the specific enumeration of a long list of appeals allowed in questions arising only under the executors' act, refers to such other matters as...