Stewart v. Taylor
| Decision Date | 07 June 1901 |
| Citation | 111 Ky. 247 |
| Parties | Stewart v. Taylor. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BUTLER CIRCUIT COURT.
JUDGMENT FINDING PLAINTIFF TO BE OF SOUND MIND AND REMOVING DEFENDANT AS HER COMMITTEE AND DEFENDANT APPEALS. AFFIRMED.
EDWARD W. HINES AND W. A. HELM, ATTORNEYS FOR APPELLANT.
TAYLOR & BORAH AND GUFFY & WHALLEN AND B. L. GUFFY, FOR APPELLEES.
The appellant, Stewart, is a brother-in-law of the appellee, Nancy Taylor, a widow 80 years of age. In July, 1899, he appeared before the county judge of Butler county, and made complaint that she was of unsound mind, and incapable of managing her estate, which consisted of $4,000 in cash and notes and $2,000 in lands. The county judge impaneled a jury to inquire into the condition of her mind and ability to manage her estate. A trial resulted in a verdict to the effect that she was of unsound mind, and incompetent to manage her estate. Thereupon the court appointed the appellant her committee, and ordered him to take charge of her estate. In October, 1899, this proceeding was instituted before the county judge of Butler county for a re-examination into the condition of the mind of the appellee. The question was submitted to a jury, and it found that she was of sound mind, and capable of managing her estate. The court accordingly entered a judgment removing the appellant as her committee, and restored the estate to her. From this judgment the appellant prosecuted an appeal to the circuit court. The appellee entered a motion to have it dismissed, and on that motion it was admitted she was not present at the trial of the proceeding instituted by appellant in the Butler county court to inquire into the condition of her mind; that she did not receive notice that an application had or would be made to have her adjudged of unsound mind; that she did not know that the proceeding was pending; that there was no written certificate or affidavit of two physicians that she was, by reason of her physical and mental condition, unable to be present in court. It was also admitted that on the trial of the inquisition, two regular practicing physicians appeared, and testified that they had examined her, and believed that she was of unsound mind, and incompetent to manage her estate; that she was physically unable to be present in court at the inquest; that a regular practicing attorney was appointed to defend for her. Upon this state of facts being admitted, the court adjudged that the first proceeding was void, and therefore dismissed the appeal. While it might have been somewhat irregular to have disposed of the case in this way, still both parties seemed to desire the merits of the controversy should be disposed of upon the motion to dismiss, because the admissions were evidently made to avoid the necessity of taking testimony, and to bring before the court in a summary way the question involved, and have it disposed of. For the reason that both parties, in effect, consented to a disposition of it in the manner indicated, we will treat it as if the case had been properly disposed of upon its merits. If the parties desired to narrow the issue, and dispose of the case upon the admitted facts, neither of them can complain on this appeal as to the manner in which the issue was disposed of, except it be to question the correctness of the judgment of the court upon the issue submitted. Section 2157, Kentucky Statutes, reads as follows: From the facts admitted, it appears that the appellant went before the county court, and had her adjudged of unsound mind, without giving her any notice of the intended application, or that such a proceeding had been instituted. She was not present in court, but her presence was not dispensed with in the manner required by the statute. It is to the effect that the presence of the defendant in the writ shall not be dispensed with unless it shall appear by the oath or affidavit of...
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