Hathaway v. Clark

22 Mass. 490

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1827
• Status: Published

Opinion

Morton J.

delivered the opinion of the Court. As the records apparently are entire and no loss of any of the papers in the probate office is suggested, we cannot, even after the lapse of more than thirty years, presume that any decree passed, or that any notice was given, which does not appear.

Notice to the person to be affected by the inquisition of the selectmen, and especially by the adjudication of the Probate Court, is essential to the validity of the proceedings of that court.¹ Any judgment or decree that a person is non compos, or appointing a guardian for that cause, without notice, is absolutely void. Chase v. Hathaway, 14 Mass. R. 222. The guardianship for the above reasons being held to be void, .he plaintiff in error has failed to prove the error assigned, and the judgment of the Court of Common Pleas must be affirmed.

1 See Revised Stat. c. 79, § 9.