The opinion of the court was delivered by
Allen, J.:
Joseph M. Henry, a single man, and his sister, Mary Shintaffer, a widow, were, in December, 1935, the owners as tenants in common of four hundred acres of land in Brown county, Kansas, fifty-seven acres in Jackson county, Kansas, and one hundred and sixty acres in Ellis county, Oklahoma. They also owned farm implements, cattle and hogs, hay, grain and other personal property in Brown county.
On December 5, 1935, Joseph M. Henry and Mary Shintaffer executed a deed to the land in Brown and Jackson counties, and a bill of sale to the personal property, to one Jasper Sherman Edde. In the deed a life estate was reserved to the grantors. The consider[71]*71ation specified in the instrument was one dollar and love and affection.
These grantors had no children. Their nearest relatives were their uncles, E. S. Baskett and Joe B. Baskett. The grantee in the deed, Jasper Sherman Edde, was not related by blood or marriage to the grantors, Henry and Shintaffer.
Several days after the execution of the deed Joseph M. Henry, accompanied by his two uncles, the Basketts, appeared at the office of Lloyd Miller, an attorney in Hiawatha, and related the circumstances under which the transfer of the property was made to Edde. Later, on the same day, Miller went to the home of Henry near Sabetha and discussed with him and his sister the matter of bringing an action to set aside the transfers of the land and personal property which had been made to Edde. Miller was employed to bring the necessary action, and the suit was filed December 14, 1935. On December 20, 1935, a letter signed by Henry and his sister was sent to Miller asking that he proceed no further in the action.
On January 8, 1936, a petition was filed in the probate court of Brown county alleging that Henry and Shintaffer were incompetents. Before service could be had on these parties, they removed to Falls City, Neb., where they have since resided. Jasper Sherman Edde, the grantee in the deed, has been a resident of Falls City since 1934.
On January 13, 1936, Paul B. Bailey, an attorney of Hiawatha, on behalf of Henry and his sister filed a motion to dismiss the action brought by Miller. This motion was overruled by the court. The journal entry recites “there is a dispute between the attorneys as to the representation of said plaintiffs, and it further appearing to the court that there is a question as to the competency of Joseph M. Henry and Mary Shintaffer.”
After several continuances, on October 22, 1937, E. S. Baskett, Joe B. Baskett, D. McFall and M. O. Alderfer filed an application stating that Joseph M. Henry and Mary Shintaffer were incompetents, and incapable of prosecuting the action against Edde, and that for the preservation of their property and the protection of their interests the action be prosecuted to a conclusion, and that the applicants as next friends be permitted and authorized to prosecute the action. Objections to the application were filed, a hearing was had, and on November 3, 1937, the court found the parties Henry and Shintaffer were both incompetent, and incapable of prosecuting [72]*72the action against Edde for the recovery of the property in question, and that it was important and necessary for the protection of their interests that the action be prosecuted to a conclusion. The court made an order directing that the applicants as next friends be permitted to prosecute the action and to file an amended petition.
The amended petition recited:
“Come now Joseph M. Henry and Mary Shintaffer, brother and sister, incompetent persons, by E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends, and for their cause of action against the said defendant, allege and aver:
“1. That Joseph M. Henry and Mary Shintaffer are nonresidents of the state of Kansas, and are residents of Richardson county, Nebraska, and are incompetent persons having no legally appointed guardian, and bring this action through E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends.”
The petition is in three counts and sets out at length the fraudulent representations and deceit by which, as was alleged, Joseph M. Henry and Mary Shintaffer were induced to transfer their land and personal property to Edde.
On November 18, 1937, E. S. Baskett et al. made application to the district court setting forth that Henry and Shintaffer are residents of Nebraska; that they are incompetents and incapable of managing their affairs; that they are the owners of real and personal property in Brown county, Kansas, which is in danger of being lost, diminished or destroyed, unless a guardian be appointed to preserve the property, and asked that a guardian of their estate be appointed. Objections were filed, a hearing held, and the court sustained the application, and appointed one Norman M. Saylor as guardian.
On November 2, 1937, the defendant Edde reconveyed the land, and on December 9, 1937, executed a bill of sale transferring the personal property to Henry and his sister.
This appeal is presented to this court by Paul B. Bailey and Joseph C. Reavis, as attorneys for Joseph M. Henry and Mary Shintaffer. The appeal is from the various orders and rulings above set forth and from the order and decision overruling plaintiffs' amended motion for a new trial.
It is asserted that the trial court erred in denying the motion of the plaintiffs to dismiss the action. Our statute, G. S. 1935, 60-3105, provides:
“An action may be dismissed without prejudice to a future action: First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”
[73]*73Under the statute the right of a plaintiff to dismiss his action without prejudice, at any time before the final submission of it, is absolute, and a denial of his application to so dismiss is prejudicial error. (Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Amos v. Loan Association, 21 Kan. 474; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Cott v. Baker, 112 Kan. 115, 210 Pac. 651.)
In Banking Co. v. Ball the court said:
“The plaintiff is entitled to control the disposition of his action, where the application is seasonably made and until the final submission of the cause. It was a common-law right, and, in this state, the statute expressly provides that the plaintiff may dismiss without prejudice to a future action, before the final submission of the case to the jury, or to the court, where the trial is by the court.” (p. 813.)
Under the rule announced in the foregoing authorities, long adhered to by this court, we think the motion to dismiss filed on January 13, 1936, should have been sustained. .
Did the district court have jurisdiction to permit the action to be prosecuted to a conclusion by the next friends of the applicants?
Our statute, G. S. 1935, 39-201 to 39-203, provides a guardian may be appointed for the person or estate of an insane or incompetent person. Section 39-209 specifies it shall be the duty of such guardian to prosecute and defend all actions instituted in behalf of or against the ward. Section 60-408 authorizes suit to be brought against an insane or incompetent person, and in certain cases provides that a guardian
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The opinion of the court was delivered by
Allen, J.:
Joseph M. Henry, a single man, and his sister, Mary Shintaffer, a widow, were, in December, 1935, the owners as tenants in common of four hundred acres of land in Brown county, Kansas, fifty-seven acres in Jackson county, Kansas, and one hundred and sixty acres in Ellis county, Oklahoma. They also owned farm implements, cattle and hogs, hay, grain and other personal property in Brown county.
On December 5, 1935, Joseph M. Henry and Mary Shintaffer executed a deed to the land in Brown and Jackson counties, and a bill of sale to the personal property, to one Jasper Sherman Edde. In the deed a life estate was reserved to the grantors. The consider[71]*71ation specified in the instrument was one dollar and love and affection.
These grantors had no children. Their nearest relatives were their uncles, E. S. Baskett and Joe B. Baskett. The grantee in the deed, Jasper Sherman Edde, was not related by blood or marriage to the grantors, Henry and Shintaffer.
Several days after the execution of the deed Joseph M. Henry, accompanied by his two uncles, the Basketts, appeared at the office of Lloyd Miller, an attorney in Hiawatha, and related the circumstances under which the transfer of the property was made to Edde. Later, on the same day, Miller went to the home of Henry near Sabetha and discussed with him and his sister the matter of bringing an action to set aside the transfers of the land and personal property which had been made to Edde. Miller was employed to bring the necessary action, and the suit was filed December 14, 1935. On December 20, 1935, a letter signed by Henry and his sister was sent to Miller asking that he proceed no further in the action.
On January 8, 1936, a petition was filed in the probate court of Brown county alleging that Henry and Shintaffer were incompetents. Before service could be had on these parties, they removed to Falls City, Neb., where they have since resided. Jasper Sherman Edde, the grantee in the deed, has been a resident of Falls City since 1934.
On January 13, 1936, Paul B. Bailey, an attorney of Hiawatha, on behalf of Henry and his sister filed a motion to dismiss the action brought by Miller. This motion was overruled by the court. The journal entry recites “there is a dispute between the attorneys as to the representation of said plaintiffs, and it further appearing to the court that there is a question as to the competency of Joseph M. Henry and Mary Shintaffer.”
After several continuances, on October 22, 1937, E. S. Baskett, Joe B. Baskett, D. McFall and M. O. Alderfer filed an application stating that Joseph M. Henry and Mary Shintaffer were incompetents, and incapable of prosecuting the action against Edde, and that for the preservation of their property and the protection of their interests the action be prosecuted to a conclusion, and that the applicants as next friends be permitted and authorized to prosecute the action. Objections to the application were filed, a hearing was had, and on November 3, 1937, the court found the parties Henry and Shintaffer were both incompetent, and incapable of prosecuting [72]*72the action against Edde for the recovery of the property in question, and that it was important and necessary for the protection of their interests that the action be prosecuted to a conclusion. The court made an order directing that the applicants as next friends be permitted to prosecute the action and to file an amended petition.
The amended petition recited:
“Come now Joseph M. Henry and Mary Shintaffer, brother and sister, incompetent persons, by E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends, and for their cause of action against the said defendant, allege and aver:
“1. That Joseph M. Henry and Mary Shintaffer are nonresidents of the state of Kansas, and are residents of Richardson county, Nebraska, and are incompetent persons having no legally appointed guardian, and bring this action through E. S. Baskett, Joe B. Baskett, D. McFall and M. 0. Alderfer, their next friends.”
The petition is in three counts and sets out at length the fraudulent representations and deceit by which, as was alleged, Joseph M. Henry and Mary Shintaffer were induced to transfer their land and personal property to Edde.
On November 18, 1937, E. S. Baskett et al. made application to the district court setting forth that Henry and Shintaffer are residents of Nebraska; that they are incompetents and incapable of managing their affairs; that they are the owners of real and personal property in Brown county, Kansas, which is in danger of being lost, diminished or destroyed, unless a guardian be appointed to preserve the property, and asked that a guardian of their estate be appointed. Objections were filed, a hearing held, and the court sustained the application, and appointed one Norman M. Saylor as guardian.
On November 2, 1937, the defendant Edde reconveyed the land, and on December 9, 1937, executed a bill of sale transferring the personal property to Henry and his sister.
This appeal is presented to this court by Paul B. Bailey and Joseph C. Reavis, as attorneys for Joseph M. Henry and Mary Shintaffer. The appeal is from the various orders and rulings above set forth and from the order and decision overruling plaintiffs' amended motion for a new trial.
It is asserted that the trial court erred in denying the motion of the plaintiffs to dismiss the action. Our statute, G. S. 1935, 60-3105, provides:
“An action may be dismissed without prejudice to a future action: First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”
[73]*73Under the statute the right of a plaintiff to dismiss his action without prejudice, at any time before the final submission of it, is absolute, and a denial of his application to so dismiss is prejudicial error. (Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Amos v. Loan Association, 21 Kan. 474; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Cott v. Baker, 112 Kan. 115, 210 Pac. 651.)
In Banking Co. v. Ball the court said:
“The plaintiff is entitled to control the disposition of his action, where the application is seasonably made and until the final submission of the cause. It was a common-law right, and, in this state, the statute expressly provides that the plaintiff may dismiss without prejudice to a future action, before the final submission of the case to the jury, or to the court, where the trial is by the court.” (p. 813.)
Under the rule announced in the foregoing authorities, long adhered to by this court, we think the motion to dismiss filed on January 13, 1936, should have been sustained. .
Did the district court have jurisdiction to permit the action to be prosecuted to a conclusion by the next friends of the applicants?
Our statute, G. S. 1935, 39-201 to 39-203, provides a guardian may be appointed for the person or estate of an insane or incompetent person. Section 39-209 specifies it shall be the duty of such guardian to prosecute and defend all actions instituted in behalf of or against the ward. Section 60-408 authorizes suit to be brought against an insane or incompetent person, and in certain cases provides that a guardian ad litem shall be appointed by the court.
Our statute, G. S. 1935, 60-406, directs that an action on behalf of an infant must be brought by his guardian or next friend. But there is no statute that permits an action to be instituted on behalf of an insane or incompetent person by a next friend. It is true that in Talbot v. Wulf, 122 Kan. 1, 251 Pac. 438, it was adjudged that an action on behalf of an incompetent person could be instituted or maintained by his next friend. In that case, however, the action was originally brought by the next friend. In the case now before us the record shows that Henry and his sister employed Mr. Miller to file the suit in their behalf. The action was filed on December 14, 1935. Six days later the plaintiffs, by written letter, notified Miller not to proceed further in the matter, and stated that they had employed Mr. Bailey to represent them'. Thereafter and on January 13, 1936, Mr. Bailey, on behalf of plaintiffs, filed a motion to dismiss the action. It was not until the following October that [74]*74the relatives of the plaintiffs made application to prosecute the action as next friends of the plaintiffs.
It is not claimed that the mental condition of the plaintiffs was impaired in any degree after the filing of the suit. If the plaintiffs were competent when the suit was filed, they were competent to demand its dismissal. The doctrine of the Talbot case could not be authority for a case like this. We think, therefore, the trial court was in error in sustaining the application of the next friends to prosecute the original action to a conclusion.
Appellants next contend the trial court erred in appointing a guardian for the estate of the plaintiffs. At the time this order was made the plaintiffs had changed their domicile to the state of Nebraska. In Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747, it was said:
“In this state it has been held that the jurisdiction for the appointment of a guardian of a minor is in 'the county of the minor’s domicile in the absence of any express statute upon that question. (Connell v. Moore, 70 Kan. 88, 78 Pac. 164.) And in Foran, v. Healy, 73 Kan. 633, 85 Pac. 751, it was held that the jurisdiction to appoint a guardian over the person and estate of a lunatic belongs exclusively to the probate court of the county where such lunatic has a permanent residence. By analogy there is every reason to hold that the jurisdiction to appoint a permanent guardian over the person and estate of a lunatic belongs exclusively to the courts of the state where such lunatic has a permanent residence.” (p. 491.)
Trust Co. v. Allen was quoted with approval in Morrissey v. Rodgers, 137 Kan. 626, 21 P. 2d 359. The syllabus in the latter case reads:
“The place of permanent residence of an incompetent person at the time of the appointment of a guardian for him is an essential, collateral, jurisdictional question of fact, and this fact is not conclusively established by the appointment by a court having jurisdiction of the subject matter, and in a proper collateral action or proceeding the true place of the permanent residence of the incompetent may be shown for the purpose of disproving jurisdiction in a court assuming authority to make such appointment.” (Syl. If 3.)
We think it clear that the district court was without jurisdiction to appoint a guardian for the estate of the nonresident plaintiffs.
One further observation must be made. The action was brought to recover real and personal property. During the progress of the litigation the property, real and personal, has been re-transferred to the plaintiffs, Henry and his sister. The object of the suit has been accomplished. When the action was originally instituted it presented an existing controversy. By the act of the parties occurring [75]*75after the commencement of the action, the question involved has become moot. It is the function of a judicial tribunal to determine real controversies, and not to decide moot questions. (Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; 1 C. J. S. 1012, 1017.)
The cause is reversed with directions to set aside the orders of the trial court hereinbefore mentioned, and to dismiss the action.