Gregg v. Klein

22 Ohio C.C. Dec. 698

• Court: Ohio Circuit Courts
• Decided: July 1, 1908
• Status: Published

Opinion

GIFFEN, J.

Upon application to the probate court by the plaintiff in error as guardian for an allowance for extraordinary services including those as attorney at law, the same was granted in part, and continued in part until the litigation in which the services were rendered was fully determined.

' On appeal by the guardian to the common pleas court, a motion by the guardian ad litem to dismiss the appeal was sustained as to so much of the application as was not finally determined by the probate court, and overruled as to the residue. To the judgment granting the motion in part the guardian prosecutes error, and the guardian ad litem asks leave to file a cross petition in error assailing the jurisdiction of the common pleas court.

There are two reasons for holding that the common pleas eourt acquired no jurisdiction:

First, there was no final determination of the application by the probate court.

Second, when finally determined the allowance or disallowance would not be a settlement of the guardian’s account within the meaning of R. S. 6407 (Gen. Code 11206).

Under R. S. 524 (Gen. Code 10492) the probate court has exclusive jurisdiction to settle accounts of guardians, and so long as any item of such account remains undetermined or for good cause should be continued, the account itself is not settled, and the common pleas court acquires no jurisdiction by appeal. The record discloses no abuse of discretion by the eourt, and if it did, the remedy would be by mandamus compelling the court to act.

Again even had the court finally passed upon each item of extraordinary services set forth in the application, and made' an allowance to the guardian, it would not have been a settlement of the guardian’s account within the meaning of the statute, but only a determination of certain items which could properly be stated in the account when filed, and subject to exceptions by others interested in the settlement of the estate. McMahon v. Ambach, 79 Ohio St. 103 [87 N. E. Rep. 1138].

The cross petition in error of the guardian ad litem, may be filed, the judgment of the common pleas court reversed, and the cause remanded to that court with instructions to dismiss the appeal for want of jurisdiction.

Smith and Swing, JJ., concur.