Tiger v. Mccallom

• Decision Date: 27 March 1923
• Docket Number: Case Number: 13515
• Citation: 214 P. 194,89 Okla. 249,1923 OK 192
• Parties: TIGER et al. v. McCALLOM, Guardian.
• Court: Oklahoma Supreme Court

1923 OK 192

214 P. 194

89 Okla. 249

TIGER et al. v. McCALLOM, Guardian.

Case Number: 13515

Supreme Court of Oklahoma

Decided: March 27, 1923

Syllabus

¶0 1. Insane Persons--Guardian--Appointment for Incompetent--Statutory Proceeding--Jurisdiction of County Court.

The appointment of a guardian for an incompetent is a statutory proceeding, and in order to vest a county court of this state with jurisdiction to appoint a guardian for an alleged incompetent it is necessary that a petition be filed in said court as required by section 6538, Rev. Laws 1910, and that notice be given to the alleged incompetent person as therein provided, and an order appointing such guardian for an alleged incompetent, where such petition has not been filed and notice given as in the statute provided, is void. Martin v. O'Reilly, County Judge, 81 Okla. 261, 200 P. 687.

2. Appeal and Error--Review of Order Granting New Trial.

Ordinarily the Supreme Court will not review the action of the trial court in exercising its discretionary power in granting a new trial; yet this court may reverse such order where the record shows clearly that the court has erred in its view on an unmixed question of law that is decisive of the case.

3. Same--Reversal.

Record examined, and held, that the order of the trial court granting a new trial should be reversed, and the cause remanded, with directions to overrule the motions of the defendants in error for a new trial.

Error from District Court, Creek County; Lucien B. Wright, Judge.

Consolidated actions by Mollie Tiger and Baby Cumsey, petitioners, against C. B. McCallom, as guardian of the estates of petitioners, to vacate orders appointing McCallom guardian. Judgment for petitioners. McCallom files motions for new trial, which were sustained. Order sustaining motions for new trial reversed, and cause remanded, with directions.

N. A. Gibson, J. C. Stone, and Lewis C. Lawson, for plaintiffs in error.

W. H. Odell and W. L. Ransom, for defendants in error.

KENNAMER, J.

¶1 This is an action originally brought in the county court of Creek county by Mollie Tiger and Baby Cumsey to set aside an order made by said court declaring said persons Incompetents and appointing a guardian for them. Applications were separately made on behalf of each of said persons to the county court of Creek county to vacate the orders of said court appointing a guardian for them, and said applications by order of the court consolidated. The orders appointing the guardian were made on July 28, 1919.

¶2 On November 10, 1919, the petition of the alleged incompetents was filed in the county court seeking to set aside the former orders appointing the guardian and to have Mollie Tiger and Baby Cumsey restored to competency. On November 19, 1919, a hearing was had upon the petition to vacate the orders appointing a guardian, and the matter was taken under advisement until the 24th day of December, 1919, when the court entered a judgment decreeing the orders made on July 28, 1919, appointing a guardian, to be null and void, and discharging said guardian and decreeing that said alleged incompetents be restored to competency.

¶3 Thereafter, on January 3, 1920, without notice to said alleged incompetents, the court made an order finding that the decree entered on December 24, 1919, had been inadvertently entered and that the cause had, prior to that date, been continued to January 10th. On January 10, 1920, upon the argument of counsel, the court entered an order removing Key, the guardian appointed on July 28, 1919, and appointed Charles McCallom as guardian of Mollie Tiger and Baby Cumsey.

¶4 Key, Mollie Tiger, and Baby Cumsey filed separate appeals from the order entered on January 10, 1920, to the district court. Key later dismissed his appeal on October 26, 1920, and on said date the county court made another order appointing McCallom guardian. From this order the two alleged incompetents appealed to the district court. The appeals came up for hearing in the district court on April 6, 1921, and were tried together and taken under advisement. On October 10, 1921, the district court entered its judgment, in which it held that the decree of the county court of December 24, 1919, in which it was decreed that the order entered July 28, 1919, appointing Key as guardian for said alleged incompetents, was null and void and declaring said incompetents to be restored to competency, was in full force and effect, and that the orders of the county court of January 3, January 10, and October 26, 1920, were void and should be vacated. The effect of the judgment of the district court was to decree the appointment of the guardian of said alleged incompetents to be void.

¶5 On October 12, 1921, McCallom, the alleged guardian, filed his motion for a new trial in each of the cases. These motions were heard May 22, 1922, and sustained on May 29, 1922, and new trials granted. The plaintiffs in error filed motions to strike McCallom's motion for a new trial. From the orders granting new trials in the cases, Mollie Tiger and Baby Cumsey have prosecuted this appeal.

¶6 Seven assignments of error are argued by the plaintiffs in error for a reversal of the order of the district court in granting the defendant in error a new trial.

¶7 Upon an examination of the record in this case we are clearly of the opinion that there is presented an unmixed question of law that is decisive of this appeal. That is, from the record of the probate proceedings introduced in this cause in the trial court, did the county court of Creek county have jurisdiction to appoint a guardian for Mollie Tiger and Baby Cumsey? If the county court of Creek county never acquired...