Wright v. Riber (In re Winnett)

• Decision Date: 12 May 1925
• Docket Number: Case Number: 15569
• Citation: 112 Okla. 43,239 P. 603,1925 OK 370
• Parties: In re GUARDIANSHIP OF WINNETT. WRIGHT, Supt., v. RIBER et al.
• Court: Oklahoma Supreme Court

1925 OK 370

239 P. 603

112 Okla. 43

In re GUARDIANSHIP OF WINNETT.

WRIGHT, Supt., v. RIBER et al.

Case Number: 15569

Supreme Court of Oklahoma

Decided: May 12, 1925

Syllabus

¶0 1. Insane Persons--Guardianship--Notice of Hearing.

By virtue of section 1449, Comp. St. 1921, when a petition is filed in the county court praying that a person be declared insane or from any cause mentally incompetent to manage his property, all proper parties to such proceedings must be given five days notice of the time and place of hearing the application, and the court acquires no jurisdiction to hear the cause until the five days' notice provided by statute has elapsed.

2. Same--Guardianship of Osage Indian--Notice to Agency Superintendent--Necessity.

The Act of Congress, April 18, 1912 (37 Stat. L. 86), provides that where a petition is filed to declare an allottee of the Osage Tribe insane or incompetent, a copy of all papers filed in the county court shall be served on the Superintendent of the Osage Agency at the time of filing, but said superintendent is authorized, whenever the interests of the allottee requires, to appear in the county court for the protection of the interests of the allottee. Held: The Superintendent of the Osage Agency is a necessary party to the proceedings and is entitled to the five days' notice provided by statute, and the appearance of the alleged incompetent before the time set for hearing the application, and her consent to have the cause heard on the same day the petition is filed, confers no jurisdiction upon the county court to hear the application prior to the date set forth in the notice the superintendent.

3. Appeal and Error--Review -- Appointment of Guardian for Incompetent.

The application for the appointment of a guardian for an incompetent is special proceeding tried to the court, and on appeal, the Supreme Court has power to, and will review all the evidence for the purpose of ascertaining whether there is sufficient competent testimony to sustain the judgment.

4. Same--Lack of Proof of Incompetency.

Mental incompetency or incapacity is established when there is found to exist an essential privation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life, and where it is not shown that such mental incompetency exists, it is reversible error for the court to appoint a guardian of the estate of an adult person.

5. Same.

Evidence examined, and held, there is no competent testimony reasonably tending to sustain the allegations of incompetency as contained in the petition.

Commissioners' Opinion, Division No. 3.

Error from District Court, Osage County; Jesse J. Worton, Judge.

Action by E. J. Winnett and Nellie White Winnett for the appointment of a guardian of the person and estate of Nellie White Winnett, alleged Osage incompetent. From judgment appointing such guardian, J. Geo. Wright, Superintendent of the Osage Agency, appeals. Reversed and remanded, with directions.

J. M. Humphreys, for plaintiff in error.

Chas. A. Holden, Leahy, Macdonald, Holcombe, Lohman & Files, for defendants in error.

RUTH, C.

¶1 This cause was first instituted in the county court of Osage county by J. E. Winnett and Nellie White Winnett filing their petition for the appointment of Wm. Riber as guardian of the person and estate of Nellie White Winnett, and from the order appointing a guardian, J. Geo. Wright, Superintendent of the Osage Agency, appeals, first to the district court of Osage county, and thence to this court upon petition in error and case-made.

¶2 The petition praying the guardianship was filed in the county court February 12, 1924, and was signed by both the petitioner, E. J. Winnett, and the alleged incompetent, Nellie White Winnett, husband and wife, and recited as follows, to wit:

"That Nellie White Winnett is a resident of Osage county, Okla. That she has an estate of the following general character and value in the county of Osage, Okla., to wit, one and two-ninths Osage estates, including lands and mineral rights; that the next of kin and persons having care of said Nellie White Winnett are E. J. Winnett, husband, and James E. Winnett, son; and J. Geo. Wright, Superintendent of the Osage Agency. That it is necessary that a guardian be appointed for said for the following reasons: That she is both mentally and physically unable and incompetent to transact and look after business affairs and is liable to be imposed upon by artful and designing persons.

"The application for appointment of a guardian was filed February 12, 1924, and notice thereof was served upon Nellie White Winnett on the date of filing, and hearing thereon was set for February 18, 1924, notwithstanding which the record discloses that evidence was introduced and a hearing had immediately upon the filing of the petition, to wit, February 12, 1924. True it is, the alleged incompetent appeared and testified at the hearing and consented to and requested the appointment of the guardian, and after hearing the evidence, the court did not make the order of appointment until April 18, 1924, the date set for the hearing, but the withholding of the order until the date set for the hearing did not cure the error of the court in holding the hearing on the date the petition was filed.

¶3 The alleged incompetent is an Osage Indian, and the Superintendent of the Osage Agency objected and excepted upon the ground that the five days had not intervened between the service of the notice on Nellie White Winnett and the actual hearing.

¶4 Section 1449, Comp. St. 1921 provides:

"When it is represented to the county court upon verified petition of any relative or friend, that any person is insane or from any cause mentally incompetent to manage his property, the judge must cause notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed, and such persons, if able to attend, must be produced before him on the hearing."

¶5 If, under the laws of this state with regard to Indian incompetents, the alleged incompetent was the only person to be served with notice, her appearance might partake of the nature of a waiver of the five days' notice, but an insane person or a mentally incompetent person is incapable of waiving any of her rights, either by appearing before the date set for the hearing, or by consenting to the appointment of a guardian, and Congress, foreseeing that undue advantage might be taken of Indians, passed the Act of April 18, 1912 (37 Stat. L. 86), which provides as follows:

"That property of deceased and of orphan, minor, insane or other incompetent allottees of the Osage Tribe, such incompetency being determined by the laws of the state of Oklahoma, which are hereby extended for such purpose to the allottees of the Osage Tribe, shall in probate matters be subject to the jurisdiction of the county courts of the state of Oklahoma, but a copy of all papers filed in the county court shall be served on the Superintendent of the Osage Agency, at the time of filing, and said superintendent is authorized, whenever the interest of the allottee requires, to appear in the county court for the protection of the interests of the allottee."

¶6 The superintendent is therefore a necessary party to the action so far as the notice of its pendency is concerned, and his plea to the jurisdiction of the court and to the hearing being had on the date the petition was filed was proper and timely.

¶7 In Martin v. O'Reilly, 81 Okla. 261, 200 P. 687, this court said with reference to section 6538, Rev. Laws 1910 (sec. 1449, Comp. Stat. 1921):

"Held in a proceeding for the appointment of a guardian of a person upon the ground that such person is mentally incompetent to manage his property, that the provisions of said statute are mandatory, and unless the prescribed notice is given the court is without jurisdiction to hear and determine such proceeding."

¶8 In the foregoing case, as in the instant case, the hearing was had on the same day and date the petition was filed, and the county court being a court of original jurisdiction, and having failed to acquire jurisdiction, no jurisdiction could be conferred upon it by the consent of the incompetent, and no jurisdiction was acquired by the district court on appeal.

¶9 The statute contemplated all parties should at least have five days in which to prepare for trial, and by virtue of the Act of Congress of April 18, 1912, the Superintendent of the Osage Agency was a necessary party and was entitled to the full five days' notice. Nor does the fact that the alleged incompetent appeared and consented to the proceedings and requested the appointment, cure the defect, for if she was insane or mentally incompetent to transact ordinary business or attend to the ordinary affairs of life, she was certainly incompetent to conduct a lawsuit, and this statute was passed for the very purpose of...