MASON, J.
This proceeding was instituted, in the county court of Okmulgee county by the filing of a motion, in the name of Jackson Barnett, by his next friend, R. B. Drake, Chief United' States Probate Attorney, to set aside and vacate purported guardianship proceedings of said Jackson Barnett, an incompetent, which were pending in said court. To this motion, E. S. Bailey, the acting guardian of Jackson Barnett, filed a pleading in which he demurred' to the motion of Drake, in so far as he purported to act in his oifieial capacity, and sought to remove him in so far as he purported to act as next friend of Jackson Barnett. This motion and demurrer of Bailey was sustained by the court, and W. C. Alley was appointed guardian ad litem for Barnett.
Thereafter, another motion in the name of Jackson Barnett, in his own proper person,, was filed' by D. O. Lytle, acting as his attorney, • wherein he sought to vacate said guardianship proceedings. Said motion was substantially the same as that filed by R. ©. Drake. The county court, at Bailey's request, dismissed this motion, and an appeal was taken to the district court, which sustained Bailey’s motion ,to dismiss said appeal from the county court, and Jackson Barnett has perfected his’ appeal to this court. R. B. Drake has also perfected his appeal to this court, the same being cause No. 17062, Jn re Appeal of Jackson Barnett and R. B. Drake, Chief United State Probate Attorney. 122 Okla. 169, 252 Pac. 418.
The defendant in error contends that the appeal of Jackson Barnett from the county court to the district court was properly dismissed for the reason that Barnett was without capacity to institute said proceedings^ in his own name, and was without capacity to authorize an attorney to institute same or to take an appeal to the district court from the order of the county court dismissing the same, by reason of the fact that on April 29, 1912, the county court of Okmulgee county, Okla., and on the 29th day of July, 1924, the superior court of Dos Angeles county, Cal., had each adjudged him to be incompetent, and each had appointed a guardian for him. Defendants in error, in the district court, pleaded and proved section 40, Civil Cod'e of California, which provides:
“Powers of Persons Whose Incapacity Has Bieen Adjudged. After his incapacity has been judicially determined, a person of insane mind can make no conveyance or other
contract, nor delegate any power or waive any right, until his restoration to capacity. * *
Said section in the California Code is in substance identical with section 4983, C. O. S. 1921. Neither section has any relation to the right of one adjudged an incompetent to institute and prosecute, either in his own name or otherwise, proceedings to set aside such adjudication. Said statutes only relate, as the language clearly shows, to the capacity of a person whose incompetency has been judicially determined to make a contract or conveyance or delegate any power or waive any right. There may be some question as to the validity of any contract of employment made between Jackson Barnett and his attorneys, since Barnett was adjudged an incompetent, but we are not concerned with that in this proceeding, hut only with the right of his attorneys to institute and prosecute this action in the name of Barnett. Inasmuch as the question here is the right of Jackson Barnett to attack the guardianship proceedings wherein he was held to be an incompetent, and not his right to execute a contract binding upon his estate. the cases cited by defendant in error are not in point.
We have no statute in this state which requires insane or incompetent persons to institute suit by guardian or next friend.
Section 209, C. O. S. 1921, provides :
“Every action must he prosecuted in the name of the real party in interest, except as otherwise provided in this article.”
Section 513, C. O. S. 1921. provides that incompetent persons who have entered into the marriage relation may bring an action to annul the same.
Section 1452, C. O. S. 1921, provides, in substance, that a person who has been declared insane may file his proceeding in the county court to have the fact of his restoration to capacity judicially determined.
It seems, therefore, in the absence of statutory inhibition, that th'e alleged incompetent should be permitted to maintain, in his own name, an action for the purpose of testing the validity of the decree which purports to have adjudged him incompetent.
In Hiett v. Nebergall, 45 Ohio St. 702, 17 N. E. 558, an imbecile ward filed a motion in the probate court in his own name asking for a termination of the guardianship. The court held that an appeal would lie from an order overruling the motion of the ward to terminate the guardianship upon the grounds that the letters of the guardianship were in the first instance improperly issued. See also, Robinson v. Waggoner (Ohio) 116 N. E. 514.
In 32 Corpus Juris, 762, the general ruli is announced as follows:
“It is the policy of both the legislature; and the courts to confer ample protectioi to the rights and interests of insane litigants The courts ordinarily have inherent powe. and are in duty bound to do so, although n< committee or guardian has been appointed and if appointed, whether the committee o guardian has proceeded wisely or not. D the absence of a statute regulating the ex evcise of the power, it becomes the duty o the court to determine the mode or manne in which the power can best be exercised t effect the end desired. It has been held tha the discretion in this regard is to be direct ed rather to the situation developed by th proceeding itse'f after the court has take: cognizance of the merits than to a determina tion in limine of the rights involved an without knowledge of the merits. Where th statute provhles the manner in which sue rights shall be protected, it must be con plied with and followed.”
In Shapter v. Pillar (Colo.) 63 Pac. 301 the court said:
“Ordinarily it is true that one adjudge non compos mentis can only act through recognized representative; but this is nc the case where the very object of the actio is to determine the legality of the jndgmei adjudging him incapable of managing h: own affairs.”
See, also, In re Moss (Cal.) 53 Pac. 357 Harmon v. Harmon (Tenn.) 206 S. W. 333 McDonald v. Morton, 1 Mass. 543.
The defendant in error also contends tha even though one adjudged' incompetent ms attack, in his own name, the proceedim so adjudging him an incompetent, the i stant case is not governed by such rule ll reason of the fact that in a subsequent prl ceeding in California, Jaokson Barnett wl again adjudged incompetent and a guard5! there appointed. It is their contention thl the guardian appointed in California shoul prosecute the action to vacate the adjudieffl tion in Oklahoma. In reply to- this col tention, it is necessary, in our opinion, I refer only to the case of Grinbaum v. Superior Court et al., 221 Pac. 635, decide by the Supreme Court of California Decel her 11. 1923. In that case, it appears thl Mrs. Julia Grinbaum, an aged woman. whS traveling in Germany with her husband, ll came mentally incompetent by reason of tl sudden death of her husband, and she was al judged an incompetent and a guardian wl appointed by the .German courts. Subl
quently, she was again adjudged an incompetent and a guardian appointed by the superior court of San Francisco. Gal. It seems that repeated efforts to seize and control her estate, through said methods of adjudication of ineompeteney, were made, and that she made original application to the Supreme Court of California, acting on her own behalf and in her own name, wherein she sought a writ of certiorari or prohibition against said superior court proceeding further with said guardianship matter. The Supreme Court of California upheld her right to prosecute such proceeding in her own name.
On examination of the entire record in the instant case, we must conclude that the circumstances surrounding the alleged appoint-nent of a guardian for the plaintiff in error n the county court of Okmulgee county jusify him in testing the legality of such proceedings in his own name.
Before discussing appellant’s assignments if error, we deem it proper to make a brief tatement of the facts in the entire proeeed-ngs as disclosed by the record herein.
Jackson Barnett is a full-blood citizen f the Creek Tribe of Indians; he is about 5 years of age.
Under the provisions of the Supplemental ¡reek Treaty of 1902 ( 32 Stat. L. 500), he •as allotted certain lands in the Creek Na-ion; same were and are restricted against lienation. Act of April 26, 1906 (34 Stat. at i. 137) ; Act of May 27, 1908 (35 Stat. at . 312).
On the 5th of March. 1912, he executed' lease for oil and gas mining purposes, rhich was subsequently approved by the ecretary of the Interior, under said acts : Congress.
Under said lease, the property was de-iloped and proved' very productive of oil id gas. He received one-sighth thereof as yalty, which was paid to the federal au-orities, as restricted funds under the said ‘ts of Congress. The said lease provided at it should be subject to the regula-ros of the Secretary of the' Interior in rce at that time or that might thereafter placed in force. There had accumulated, i to 1922, in the hands of the federal au-orities, approximately one and one-half Ilion dollars; the Secretary of the Interior rm time to time changed his rules and gulations governing the control of such strieted 'lands and the restricted fund's Bising therefrom. In 1922. the regulations B the Secretary of the Interior of March ■ 1921. governing such funds, were amended so as to provide that the moneys held by the Superintendent of the Five Civilized Tribes (who was under the Secretary) for the benefit of persons alleged to be incompetent, might be paid directly to the alleged incompetent or on his orders, as the Secretary might authorize.
On December 15, 1922, the said Jackson Barnett was before the Interior Department in Washington, D. C., and made a written request to dispose of or place in trust certain portions of his money, which request was approved by the Secretary of the Interior. Under such authorization, Liberty Bonds in the sum of $550,000 were delivered to the American Baptist Home Mission Society, and by it in turn delivered to the Equitable Trust Company to be held' in trust as long as the said Jackson Barnett lived, $20,-000 of the income therefrom to be paid annually for his benefit; $550,000 of Liberty Bonds were delivered to the wife of the said Jackson Barnett; $200,000 of which was placed with the Riggs National Bank of Washington, D. C., $7,500 from the income to be paid to the benefit of Jackson Barnett during .his lifetime'. The said amount so given the Baptist Home Mission Society was, at the death of said Jackson Barnett, to be used for the benefit of Bacone Indian School, located at Bacone, Creek Nation, Okla. The $200,000 held by the Riggs National Bank to be delivered, on his death, to the said wife of Jackson Barnett. Trust agreements so providing were executed.
The contention is made by counsel for plaintiff that, although Jackson Barnett had no close or immediate relatives, certain persons. who were preparing to interest themselves in his estate after his death, were instrumental in securing an order of the county court of Okmulgee county directing said E. S. Bailey, as guardian of Jackson Barnett, to bring suits, for the recovery of all said bonds, against the parties receiving the same, in trust. Suits were accordingly brought in the proper jurisdiction for that purpose.
It was then that the proceedings appealed from herein were commenced' by R. B. Drake filing his motion attacking said guardianship proceedings wherein Carl J. O’Hbrnett was appointed guardian and' the said E. S. Bailey was subsequently appointed.
Said guardianship proceedings were originally commenced on April 22. 1912, when a petition was filed in the county court of Ok-mulgee county praying the appointment of a guardian for Jackson Barnett. An order was entered on April 29. 1912, appointing the
said Carl J. O’Etornett as guardian. Within five days after said Rearing and purporttd appointment, Jackson Barnett, in person, and by his next friend, Timmie Randall, filed in said court their petitions to set aside said or-er purporting to appoint the said Carl J. O’-Hornett guardian for the said Jackson Barnett. The county court heard said petitions and denied the same, and Jackson Barnett and Timmie Randall, as next friend, dmy appealed from said judgments of the county court to the district court of Okmulgee county. On the 24th of June, 1912, the district court consolidated and heard the two said appeals and decreed that the county court of Okmulgee county was without jurisdiction to appoint a guardian for Jackson Barnett, and vacated and set aside said order and judgment purporting to appoint Carl J. O’Hornett as guardian, and directed that a certified copy of its judgment be spread upon the journal of the county court. The material language of said judgment of the district court, and from which no appeal was ever perfected, is as follows:
“And having inspected the records of both said appeals and upon motion of appellant, finds, orders and adjudges that the county court in and for Okmulgee county, Okla., had no jurisdiction of the parties or the subject-matter hereof; that the order of said court entered on April 29, 1912, whereby the said county court did purport to appoint Cari J. O’Hornett as the legal guardian of the person and estate of Jackson .Barnett, an alleged incompetent., is null and void, and the same is hereby vacated and set aside.
“It is hereby further ordered that the clerk of this court transmit to the county court in and for Okmulgee county, Okla.. a certified copy of this judgment, and order, and that the said county court in pursuance of the judgment herein, vacate and set aside its order heretofore made, attempting to appoint Carl J. O’Hornett as guardian of Jackson Barnett, an alleged incompetent.”
The court clerk on July 1,
1912,
comp ied with the judgment of the district court and filed in said county court a copy of the said judgment. Some contention was made that the county judge should enter certain orders after the filing in the county court of the judgment of the district court. The county judge refused to do so, and, on July 8, 1912, he was required to do so by a peremptory writ rf mandamus. In said proceeding the county judge responded, among other things, as follows :
“Th'e order prayed for (that is, the mandamus) is in an action which was appealed to the honorable district court of Okmulgee county, where the trial of said cause upon questions both of law and fact is de novo, and it is and was the duty of said court to make any and all final orders in said cause and the judgment of said court is and was conclusive of the law and fact in said cause, and becomes a substitute for the judgment of the county court, and operates .of its own force and effect to vacate the judgment of the court below, which has no duty to perform in further vacating said judgment.” Signed, George A. Johns, County Judge, and sworn to by bim.
This .order of the district court, which, in effect, was a mandate from the district court to the county court, was not and never has been recalled. Thereafter, on September 5, 1912, the judge of the district court of Ok-mulgee county attempted to make an order setting aside its said judgment of June 24; 1912, wherein it vacated the judgment of the county court appointing said guardian. The journal of the district court, however, shows that on August 7 1912. said court adjournec without fixing any day or date when th< court would reconvene. From August 7tl up to and including the 5th day of Septem her the journal of the district court showi orders entered “in vacation,” and on Septem her 5th, the journal, after showing the word “in vacation.” shows the order above referrei to attempting to vacate its former ordei After said order of the district court of Sex tember 5, 1912, the said Oarl J. O’Hornet claimed to be, and acted as, guardian for considerable period of time, after which h filed his resignation as said guardian, whie was accepted by the county judge. Afte said resignation was accepted, and withotfl a petition for the appointment of anothc guardian and without notice or citation to, < actual .knowledge of the said Jackson Ba nett, and without his consent thereto, or eve his presence in court, the county court mat an order appointing the said E. S. Bailey
i
guardian of the person and estate of Jab son Barnett, and the said Bailey now a sumes to
act
in said capacity.
This brings us down to the commenceme of the proceedings now before us, where the petitions of Jackson Barnett, in his ov proper person, and by R. B. Brake, ne friend, were filed in the county court ai subsequently disposed of in the district corn from which Barnett has perfected this a peal.
For reversal, it is the contention of Jac son Barnett:
(1) That the adjudication of inconnH tency does not preclude him from main taw ing these proceedings in his own name. ■
(2.) That the county court of Okmulgee county never had jurisdiction of the parties in the guardianship proceedings for the appointment of Carl J. O’Hornett in 1912, and, therefore, had no jurisdiction to appoint his purported successor, E. S. Bailey, without notice.
(3) That the alleged appointment of Carl J. O’Hornett, as guardian, made on April 29, 1912.. was vacated and set aside by final judgment of the district court on appeal on July 24, 1912, and that the purported order and judgment of the district court made on September 5, 1912, was <void— -
(a) Because said court had not recalled its mandate from the county court before it proceeded, and. therefore, was without jurisdiction.
(b) Because said judgment or mandate of the district court vacating the appointment of O’Hornett had been received by the county court,; spread of record, and by the county court treated as a dismissal of said guardianship proceedings.
(e) Because said order of the district court was made by the district judge “in vacation” and not by the district court in session.
(4) That the district court erred in not rendering judgment for the plaintiff in error, Jackson Barnett, vacating and setting aside ¿he purported appointment of E. S. Bailey s his guardian.
We have heretofore disposed of the first jontention by holding that one who has been id judged an incompetent can maintain in his >wn name an action to determine the legally of the judgment adjudging him an incom-letent.
In support of the second contention, the ippellant cites and relies upon many errors tnd omissions in the probate proceedings therein O’Hornett was appointed guardian. :t is contended that the allegations of the >etition were insufficient to give the court urisdiction; that the citation was not served n the manner provided by the statutes; hat the court failed to find sufficient facts o support an order appointing said guardian, fhe defendant, however, contends that all of hese errors, if any. in said proceedings have ieen waived by subsequent conduct on the >art of appellant. In view of the fact that Hhe case must be reversed on other grounds, Bve do not deem it necessary to go into the Baany questions raised relative to these pro-Heedings, but in passing will say that we Biave seldom seen a probate matter which has been handled in such a careless ana indifferent manner as the one before us.
In support of the third contention, it is insisted that judgment of the district court, reversing and vacating the order appointing Carl J. O’Hornett guardian by the county court, became final, and that the said O’Hor-nett has acted since that time without authority. The defendant in error, however, contends that the order of the district court made on September 5, 1912, vacated the order of April 24, 1912, and that the original appointment of O’Hornett as guardian by the county court made on April 29, 1912, was in full force and effect until his resignation was accepted by the county judge, and E. S. Bailey was appointed. The question, therefore, turns upon the validity of the order of September 5, 1912. This depends upon two questions: (1) Whether the district court was in session; and (2) conceding that the court was in session, would said order be effective to vacate said reversal without first entering an order revoking and recalling the mandate issued to the county court on June 24, 1912?
We have heretofore seen that the district court, prior to entering said order, had adjourned without fixing a day for reconvening, and that after that date the journal, required to be' kept by the court clerk, showed orders made “in vacation,” and that the order under consideration appeared therein under the heading “in vacation” and that there was nothing in said order to indicate that it was made by the court in session. We must conclude that said order was made by the judge in vacation, and not by the court in session, and that it is, therefore, void, as a judgment of the district court cannot be vacated and set aside by order of the judge “in vacation.”
The defendant in error, however, contends that the presumption obtains that the court remained in session until it was shown by the record that it had adjourned for the term. Even if we should concede that such presumption obtains, the question then would' be as to whether the journal, required to be kept by the clerk, and subsequently signed by the judge attesting the journal record as a verity, did not show that the court had adjourned and was in vacation at thd time the order of September 5; 1912, was entered. See sections 686, 687, 688, and 689, C. O. S. 1921; Pettigrew v. Harmon, 62 Okla. 245, 162 Pac. 458.
We think that if the presumption should be indulged that the court continued in session, the journal record, through which the
court speaks,, showing that the order of September 5th was made “in vacation,” overcomes and strikes down such presumption.
On the second proposition, supra, as to the effect of the said order of September 5th, ev'en had the court bean in session, it is our opinion that the order as entered was not effective to vacate the reversal of the county court, when said judgment and mandate of the district court had, by its order, been entered on the record of the county court and had never been recalled or revoked.
Section 1428. O. O. S. 1921, provides:
“Enforcement of Decree by Probate Court. When a judgment, decree or order, from which an appeal has been taken, is wholly or partly affirmed, or is modified by the judgment rendered by the. district court upon such appeal, it .must be enforced, to the extent authorized by the latter judgment, by the county court, in like manner as if no appeal therefrom had been taken; and, the d ¡strict court must direct the proceedings t) be remitted for that purpose to the county ojurt or the judge thereof.”
4 Corpus Juris, page 1246, section 3316, announces the general rule as follows:
“After a cause has been decided on appeal and the case remanded, the appellate codrt has no jurisdiction to grant a rehearing, at least unless it first recalls the, mandate for the purpose of reinvesting itself with jurisdiction. Where the clerk of the appellate court is required 'by statute to remit the papers in the case to the lower court within a certain period of time after judgment rendered, the court has no jurisdiction to grant a rehearing after the lapse of the statutory period regardless of whether the papers have actually been remitted or not.”
We must conclude that the judgment of the district court of June 24th, reversing the county court and decreeing that there was no valid appointment of Carl J. O’Hornett as guardian of Jackson Barnett, has, ever since its entry, been of full force and effect as a substitute for the judgment of the county court.
The district court, therefore, erred in dismissing Jackson Barnett’s ap/peal from the county court.
In response to the plaintiff in error’s 4th contention, that the district court erred in not vacating the purported appointment of E. S. Bailey, as guardian, the defendant in error makes some contention that the proceeding is not here on its merits, and that the only question presented for review is the ruling of the district court in dismiss’ng the appeal from the county court. The defendant in error, however, has briefed the case on its merits.
The complete records of the proceedings had in the county court were before-the district court, and by it considered,, and such records are now before us. The ruling of the district court was, in fact, a finding against thé contentions of the plaintiff in error on the merits. If we were to-remand the case to the district court for further proceedings, no additional records would' be necessary or competent, other than those-before us at this time.
The circumstances of this particular ease, as shown by the record before us, disclose that Jackson Barnett, the plaintiff in error, is now of the advanced age of 75 years; that this litigation, and numerous angles thereof, has been pending for more than -12 years; that during- most of -his life he ■ has been a citizen of-thei rural districts with very few friends or relatives until -the. land allotted to him by the federal government became productive of oil; that he is in a more or less enfeebled mental state, if not actually mentally incompetent; that during the past 32 years he and his property have been undei the immediate custody and care o-f guardian.by reason of persistent efforts to sustain the void guardianship proceedings heretofore referred to. AVhat may 'be the actual state of his bodily health or inenral powers a present is beyond the scope of the instant in quiry. but it is reasonably certain that, a most, he has left but few remaining years of his already prolonged and too mu cl troubled life.
To remand this case to the district cour for a new trial in order to obtain the relie which he seeks, and which has been judici ally decided in his favor, would, In effect, b' tq relegate him to litigation which wouli in all reasonable probability outlast his lift and during the continuance of which h would not only.be under the ban of the pur ported judicial determination of his ineom petency, but would also have his propert and affairs administered by a guardia whose appointment he is and has been cor testing from its inception. In such retria the only question to be determined would b the question as to the validity o-f the pui ported appointment of Carl J. O’Hornetl This question was finally determined, as w have heretofore held, by the order of th district court of Okmulgee county, entere on June 24, 1912.
In this connection, it is to be no-ted that th defendant in- error in this proceeding is nr
an adverse party in tire ordinary sense of the term, said guardian has no interest in Barnett’s properties or estate in any capacity other than that as guardian, and has no right to be in possession and control of same, except upon the assumption that Barnett has been judicially determined to be incompetent by a valid order of the court, which, after such determination, appointed said guardian to act. His highest duty as such guardian is to the ward, and in relation to both his personal welfare and his property rights he can have no adverse or selfish purpose or interest to subserve; nor should such guardian be heard to urge either that removal of said ward from the shadow of an alleged adjudication of incompetency, if such removal is otherwise proper, shall be delayed, nor that his possession and control of such property shall be perpetuated through his insistency upon slower or more involved procedure than that- adopted by the ward to gain relief.
In view of the fact that rurther proceedings of any kind, by the district court, except to again vacate the purported appointment of Carl J. O’Hornett as guardian of Jackson Barnett, would be error, we deem it the better policy to consider the entire record before us and now render such judgment as should have been rendered by the district court, rather than put the plaintiff in error to further delay and useless expense.
The appointment of E. S. Bailey as guardian of Jackson Barnett, 'being made with->ut any notice whatever, can be of no more validity than the original appointment of lari J. O’Hornett.
From the foregoing, we must conclude ;hat the district court erred in dismissing ;he appeal from the county court and erred n refusing to render judgment on the record >efore it in favor of the plaintiff in error.
The judgment of the district court is, herefore, reversed, and remanded, with di■eetions to enter its order vacating the ap-wintment of E. S. Bailey, as the guardian if Jackson Barnett, and to cause the county :ourt to enforce said judgment.
NICHOLSON, C. J., BRANSON, V. C. J., nd PHELPS, LESTER, HUNT, and RILEY. 'J., concur. HARRISON, J., dissents.