Eberly, J.
Robert Richardson and Hazel Richardson filed in the county court of Polk county a petition, alleging that “Leo M. Warner, an inhabitant of and residing in Polk county in the state of Nebraska, is mentally incompetent to have the charge and management of his property;” that said incompetent person is possessed of personal property situated in Polk county of the value of about $4,500 and is also the owner of an interest in real estate situated within the state of Nebraska of the value of about $300; that said incompetent person has minor children dependent upon him for support, and it is necessary for the welfare of said incompetent person and his dependent children that a guardian be appointed for the purpose of taking charge of the property, etc. The petition also sets forth that petitioners are relatives of said incompetent person, being a nephew and a niece of him, and prays for the appointment of E. C. Nordlund as such guardian. Notice of hearing on this petition was served on Leo M. Warner, Eva B. Warner, Floyd M. Warner, Dean M. Warner and Herbert K. Richardson. A demurrer was thereupon filed to said petition by Leo M. Warner, challenging the capacity of the plaintiffs to sue, the jurisdiction of the county court to hear the proceeding, and the sufficiency of the petition to state a cause of action. Thereupon Leo M. Warner filed an answer which carried forward the challenge to the capacity of plaintiffs to sue and to the jurisdiction of the county court, and denied generally the allegations of the petition. On August 16, 1937, being the date to which the hearing on said matter [28]*28was continued by consent and agreement of parties, the county court overruled the demurrer of Leo M. Warner, also adjudged that “due and legal service has been had on all parties herein as provided by law, and that the facts set out and alleged in the petition filed herein are true and that said Leo M. Warner is mentally incompetent to have the charge and management of his property,” etc. Further, the county court appointed E. C. Nordlund as guardian of said Leo M. Warner. In connection with this judgment there appears a stipulation that service of process was lawfully obtained as provided by law upon Leo M. Warner, the alleged incompetent, herein, and the next of kin of said Leo M. Warner. E. C. Nordlund thereupon qualified as such guardian and gave his official bond which was duly approved on August 26, 1937.
Leo M. Warner appealed from the judgment so entered, and on October 6, 1937, petitioners Robert Richardson and Hazel Richardson filed in this cause in the district court for Polk county, Nebraska, their petition on appeal which contained the essential averments originally set forth in the petition filed by them in the county court of Polk county, Nebraska. To this petition on appeal, Leo M. Warner answered by a general denial. The issues thus made up were submitted by the district court to a jury, which, after'hearing the evidence, returned as their findings and verdict “That Leo M. Warner is now incompetent to have charge and management of his property.” Thereupon Leo M. Warner filed his motion for a new trial which was by the district court overruled, and thereupon a judgment was entered for petitioners as prayed. This judgment recites, in part, viz.:
“Now, on this 14th day of July, 1938, this matter came on for hearing upon said motion for new trial and for a consideration of the advisory verdict of the jury and after due consideration, the court finds that said motion for new trial should be overruled, and an order and decree entered herein in accordance with the advisory verdict returned by the jury in said matter; further, the court finds that the [29]*29allegations set forth in the petition herein aré true, and finds generally for the petitioners; further the court finds from the evidence submitted that the said Leo M. Warner is now incompetent to have charge and management of his property, and that the appeal herein should not be sustained, and guardianship affirmed, and the case remanded to the county court for further proceedings.
“It is therefore, ordered, adjudged and decreed by the court, that the motion for new trial filed herein by Leo M. Warner, be, and the same is hereby overruled; that Leo M. Warner is now incompetent to have the care and management of his property and estate; that he should have a guardian to manage and handle his property and estate, and that the appeal in said guardianship matter to this court be not sustained, and that the guardianship findings and decree of the county court should be sustained and the same is hereby affirmed and sustained and said case is hereby remanded to the county court for further proceedings.”
From this judgment, Leo M. Warner appeals.
Preliminary to a consideration of the merits of this appeal is the necessity of determining the effect of the submission of the issues to a jury in the district court, and the nature of the verdict returned therein, whether conclusive or advisory only.
“A trial by jury cannot be had in a probate court unless expressly authorized by statute, since such courts, having always proceeded without the intervention of a jury, are not within the application of the constitutional provisions relating to jury trials.” 35 C. J. 151.
Section 16, art. V of the Constitution of Nebraska, provides: “County courts shall be courts of record, and shall have original jurisdiction in all matters of * * * appointment of guardians, and settlement of their accounts,” etc. This confers on county courts exclusive original jurisdiction over the subject of the appointment and removal of guardians. Stewart v. Herten, 125 Neb. 210, 249 N. W. 552.
Also, section 6, art. I of our Constitution, provides: “The right of trial by jury shall remain inviolate,” etc. We are [30]*30committed to the view that this provision does not create or extend, but merely operates to preserve, the right of jury trial as it existed prior to the adoption of our Constitution of 1875. In other words, it may not be curtailed. Sharmer v. McIntosh, 43 Neb. 509, 61 N. W. 727; Kuhl v. Pierce County, 44 Neb. 584, 62 N. W. 1066; Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N. W. 30.
“A jury trial cannot be demanded as a constitutional right in proceedings for the appointment or removal of guardians,” in the absence of a statute providing therefor. 35 C. J. 181. See, also, 16 R. C. L. 204, sec. 23.
The general rule seems to be that there is no right to a jury trial in proceedings to determine the question of a person’s sanity, except where, as in some jurisdictions, the right is conferred by statute. Indeed, “It is well understood that at common law there was no right of trial by jury in sanity inquisitions.” Sharum v. Meriwether, 156 Ark. 331, 334, 246 S. W. 501. See, also, Ex parte Tomlinson, 1 V. & B. 57; Crocker v. State, 60 Wis. 553, 19 N. W. 435; State v. Linderholm, 84 Kan. 603, 114 Pac. 857; In re Brown, 39 Wash. 160, 81 Pac. 552, 109 Am. St. Rep. 868; Ex parte Scudamore, 55 Fla. 211, 46 So. 279; Hagany v. Cohnen, 29 Ohio St. 82; State v. Judge Eighth Judicial District, 48 La. Ann. 503, 19 So. 475; In re Bresee, 82 Ia. 573, 48 N. W. 991; Black Hawk County v. Springer, 58 Ia. 417, 10 N. W. 791; Gaston v. Babcock, 6 Wis. 502.
“In proceedings not within the application of the constitutional provisions the fact that an appeal is allowed does not entitle the parties to demand a jury, unless the statute so provides.” 35 C. J. 195.
The method and effect of appeals in probate proceedings in this state are governed by sections 30-1601, 30-1606, 30-1607, Comp. St. 1929. These are applicable to appeals in actions involving the appointment of guardians. In re Guardianship, of Strelow, 116 Neb. 873, 219 N. W. 387.
Section 30-1606 provides, in substance, that upon compliance by the appellant with the requirements thereof, the district court “shall be possessed of the action, and shall [31]*31proceed to hear, try, and determine the same, in like manner as upon appeals brought upon the judgment of the same court in civil actions.” This was enacted in 1881. Our present Code of Civil Procedure, enacted in 1867, expressly abolishes all forms of actions and suits heretofore existing, and provides: “And in their place there shall be hereafter but one form of action, which shall be called a ‘civil action.’ ” Comp. St. 1929, sec. 20-101.
As to the trial of issues arising in the “civil action” thus defined, the controlling terms of our Code are, viz.:
“Issues of law must be tried by the court, unless referred as provided in section three hundred and eight (20-1139) of this Code. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury unless a jury trial is waived or a reference be ordered as hereinafter provided.” Comp. St. 1929, sec. 20-1104.
“All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this Code.” Comp. St. 1929, sec. 20-1105.
In view of the many questions which are within the civil jurisdiction of county courts (see Gainsforth v. Peterson, 114 Neb. 442, 207 N. W. 935) the statutory language of section 30-1606, Comp. St. 1929, quoted above, does not necessarily imply that the trial of an appeal from the probate court will of necessity involve a jury trial. Remembering the fact that our Civil Code is, at least in a degree, applicable to all our courts, it is obvious that the interposition of a jury is mandatory only when the inherent nature of the issues to be determined, in the light of constitutional and code provisions quoted, or the express terms of statutes which may be involved, so require. This as a principle of procedure has by implication at least been approved by this court in its application of the provisions of section 30-1606, Comp. St. 1929.
Thus, in Sheedy v. Sheedy, 36 Neb. 373, 54 N. W. 560, where the matter involved was the payment of an allow[32]*32anee out of an estate to the widow, it was held error to refuse a jury trial on appeal.
And in the case of In re Estate of Maag, 119 Neb. 237, 228 N. W. 537, it was determined: “An appeal from the refusal of the county court to make an allowance out of the estate of a deceased husband for the support of his widow is a law action and is triable to a jury unless a jury be waived.”
But, in the case of In re Estate of Scott, 76 Neb. 28, 106 N. W. 1003, we announced the rule, viz.: “Upon appeal to the district court from an order appointing an administrator, the issue presented by the appeal is one for the court, and should not be submitted to a jury.”
Again, in the case of In re Estate of Wilson, 83 Neb. 252, 119 N. W. 522, there was presented the question of proper compensation for an administrator, and the court, while not unanimous on other questions involved, without dissent announced the principle that “in the district court the claim should have been tried without the assistance of a jury.”
In the instant case, it is manifest that the controlling issue involved is not within the protection of section 6 of our Bill of Rights. Further, it is not an issue arising in an action for the recovery of money or of specific real or personal property, and neither in the court of original jurisdiction nor in the appellate court is there any statute which specifically directs a jury trial. The issues become triable by a jury only in the exercise of the discretionary power of the district court to “order any issue or issues to be tried by a jury.” Comp. St. 1929, see. 20-1105. This, indeed, constitutes our Civil Code authorization of the submission of issues to a jury in suits in equity, and, likewise, in the proceeding now being reviewed; in both it being a matter of discretion and not a matter of right.
“In suits not triable by jury as of right, a verdict of a jury is advisory only.” 25 Standard Ency. of Procedure, 1053. In other words, “In suits in which a trial by jury is not expressly provided by statute, the verdict of a jury is advisory only (Peterson v. Estate of Bauer, 76 Neb. 652, [33]*33661, 107 N. W. 993, 111 N. W. 361) and the court is under no legal obligation to abide by it (Bank of Stockham v. Alter, 61 Neb. 359, 85 N. W. 300; Foxworthy v. Colby, 64 Neb. 216, 89 N. W. 800). The chancellor in reaching a final conclusion may modify the verdict, reject it in toto, or render a decree contrary thereto. The verdict of a jury is not the sole basis of a decree, but the decree must be made as the result of the chancellor’s judgment upon the evidence, aided merely by the jury.” 14 Standard Ency. of Procedure, 536.
The conclusion supported by the record in the instant case is that, the issues involved not being triable to a jury as a matter of right, the verdict returned therein is not to be deemed conclusive, but treated as advisory only, and the ultimate responsibility for the determination of the facts involved rests with the trial judge and not with the trial jury.
Therefore, in this proceeding, as in appeals in jury trials in equity cases, “Error cannot be predicated upon instructions given or refused by the court. In determining the correctness of the findings in a suit, the appellate court does not review the instructions, but considers the evidence introduced on trial in order to decide the cause on its merits.” 14 Standard Ency. of Procedure, 536.
For, it is also a well-established rule of procedure in this state that “Reversible error cannot be predicated on the admission of incompetent or immaterial evidence in equity cases. The trial court is presumed to have disregarded any such evidence.” Lancaster County v. Graham, 120 Neb. 785, 235 N. W. 338.
In this class of cases, notwithstanding the interposition of a jury in an advisory capacity, the issues involved are ultimately determined by the court, and the final judgment entered herein is within the protection of the rule that, in a case tried to the court, the presumption obtains on appeal that the court, in arriving at a decision, will consider such evidence only as is competent and relevant, and this court will not reverse a case so tried because other evidence was [34]*34admitted. Miller v. Banner County, 127 Neb. 690, 256 N. W. 639; American Surety Co. v. First Trust Co., 124 Neb. 874, 248 N. W. 697; McCarter v. Cover, 122 Neb. 691, 241 N. W. 525; Hartford v. Pinnie, 128 Neb. 771, 260 N. W. 371.
The result of the application of the rules of procedure above discussed to the record in the instant case is to reduce the controlling questions for our consideration to two, viz.: (1) The sufficiency of the petition to state a cause of action'; and (2) the sufficiency of the evidence to sustain the judgment entered.
As to the sufficiency of the petition, the substance of this pleading is set forth in the first paragraph of this opinion. Even if all reference to the minor dependent children contained therein be deemed surplusage and be excluded from consideration, ample allegations remain which set forth all the required statutory elements essential to the sustaining of the proceeding. In it are set out allegations that “Leo M. Warner, an inhabitant of and residing in Polk county in the state of Nebraska, is mentally incompetent to have the charge and management of his property,” and that he is the owner and possessed of certain real and personal property of an' alleged value situated within the jurisdiction of the court. It is clear that the pleading attacked states a cause of action, and the technical objections thereto are not well taken. Comp. St. 1929, secs. 38-201, 38-202.
In consideration of the question of the sufficiency of the evidence to support the judgment entered by the district court, the first matter requiring attention is the record of proceedings had in the county court of Polk county, Nebraska, entitled, “In the Matter of Guardianship of Leo M. Warner, an incompetent person,” which were instituted by the filing of a petition by Leo M. Warner on March 29, 1929. It was offered in evidence by the petitioners in the district court, and admitted in evidence over the defendant’s objection that “the county court of Polk county, Nebraska, did not have jurisdiction * * * of said subject-matter, or of the person of the defendant, and that the same * * * are [35]*35incompetent, irrelevant and immaterial.” This is, in effect, a collateral attack on the judgment offered.
“A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law. * ...... When a judicial order, judgment or proceeding is offered in evidence in another proceeding, an objection thereto on account of judicial errors is a collateral attack.” Van Fleet, Collateral Attack on Judicial Proceedings, 5.
In the present case Leo M. Warner is not charged with insanity, but alleged to be incompetent. In support of this issue the general rule appears to be: “The acts and conduct of a party from his boyhood up are admissible to illustrate his condition of mind at the time of the trial; and so, of course, his sayings, and manner of talk and conversation, as furnishing the best evidence of his mental condition.’! Woerner, American Law of Guardianship, 411.
We are committed to the rule that, “In a-proceeding for the appointment of a guardian for alleged incompetency because incapable of caring for his property, where the person is a party to the proceeding and has not been adjudged insane, his admissions, .declarations, and showing of facts inconsistent with mental soundness are admissible as substantive evidence on the issue of sanity.” (And this same rule was applied to the decision of the issue of competency.) Keiser v. Keiser, 113 Neb. 645, 204 N. W. 394.
The record objected to is a proceeding resulting in an appointment of a guardian for Leo M. Warner as an incompetent. It was commenced by a petition filed by him in the county court of Polk county, Nebraska, on March 29, 1929, as hereinbefore stated. This pleading is both subscribed and sworn to by him, in which it is alleged that the petitioner “is incompetent to handle his business affairs; that he is possessed of personal estate situate in the state of Nebraska of the estimated value of $400 and of real estate of the estimated value of $3,000 net; that it is necessary that a guardian should be appointed for the purpose of taking care of his interest in said estate.” A guardian is [36]*36therein nominated, whose appointment is prayed for. This record further discloses that upon the filing of this petition, by order of the county court then made and entered, the cause was set down to be heard on April 15, 1929, and it was further ordered “that notice of said hearing be personally served on the said Leo M. Warner fourteen days prior to the said day of hearing.” A proper notice of the pendency of said petition thereupon issued out of said court and was personally served on Leo M. Warner by the sheriff of Polk county on March 29, 1929. On April 15, 1929, pursuant to the notice served, a public hearing was had, as by law provided, in the county court of Polk county, the petition sustained, and the prayer thereof granted; and Frank W. Warner was adjudged “a suitable person to have the care and custody of the person and management of the estate of said Inc. (Incompetent), and it further appearing that a guardian should- be appointed,” the said Frank W. Warner was thereupon appointed, and he took oath, gave bond, and entered upon his duties as such. Said Frank W. Warner continued to serve in that capacity until the personal estate coming into his possession had been lawfully paid out and applied and thus wholly exhausted. Thereupon he filed a final report, together with his resignation. The final account was duly approved by the county court, and the resignation accepted, and Frank W. Warner was discharged as guardian. The irregularities in this record, on which the quoted objections are based, are, viz.: The omission of the word “mentally” (incompetent) in the complaint; the fact that the petition was signed and verified by an incompetent and not by his “relatives or friends,” as required by section 38-201, Comp. St. 1929; and the fact that the petition does not disclose that he was a resident and inhabitant of Polk county and owned property situated therein.
The evidence in the instant case discloses that he was then a bona fide resident and inhabitant of Polk county, Nebraska, and the owner of personal property situated therein.
[37]*37■ Webster’s New International Dictionary (2d ed.) defines “incompetent” as, viz.: “One who is incompetent, as one incapable of managing his affairs because mentally deficient or undeveloped; as, children and idiots are incompetents in the eyes of the law; one incapable of doing what is properly required; as, these men are incompetents.”
The defendant relies on Brandeen v. Beale, 110 Neb. 686, 194 N. W. 787, to sustain his contentions. Unexplained this case might be deemed to furnish some support for his argument. But when the controversy came before this court a second time, our opinion was reported under the title of Brandeen v. Lau, 113 Neb. 34, 201 N. W. 665. We not only 'determined that it was wholly unnecessary to amend the petition before the court in Brandeen v. Beale, 110 Neb. 686, 194 N. W. 787, but that the original petition was ample to vest the county court with jurisdiction. The following excerpts disclose the gist of our second opinion of that case, viz.:
“ ‘The sufficiency of the petition,’ in a court of record, ‘is not a test of jurisdiction, as the court may commit an error in holding it sufficient ;• but this, if the court had jurisdiction, will not render the judgment subject to collateral attack.’ Taylor v. Coots, 32 Neb. 30.
“The omission of an allegation of a jurisdictional fact, in a judgment of a court of record, is cured by proof of the existence of such fact, and where, in such court, a judgment is rendered, and is silent with respect to a jurisdictional fact, it will be presumed that the court acted within its jurisdiction. Woerner’s'American Law of Administration (3d ed.) secs. 143-145.
“Jurisdiction of the subject-matter, in a court of record, is to be tested by the authorized extent of the powers of the court in respect of the cause of action before it. Woemer’s American Law of Administration (3d ed.) sec. 144.
“In a court of record, it is not essential that every jurisdictional fact appear upon the face of the record, and if a petition sets out facts sufficient to show a cause of action within the general jurisdiction of the court, and no facts [38]*38appear upon the face of the record establishing that no jurisdiction exists, all presumptions are resolved in favor of the power of the court to act.”
These doctrines were, in effect, upheld and the third decision (a Commissioner’s opinion) of Brandeen v. Beale, No. 25436 (not officially reported), was made in harmony therewith, as also was the final determination of the matters in dispute in that case made by this court in Brandeen v. Beale, 117 Neb. 291, 220 N. W. 298.
Indeed, this result is quite in harmony with the doctrine announced by this court in the' early case of Seward v. Didier, 16 Neb. 58, 20 N. W. 12, wherein it was determined, viz.: “Where a petition for the appointment of a guardian for a child six or seven years of age was signed in the name of the child, and a guardian was appointed and gave bond, etc., held, sufficient to give the court jurisdiction.”
“The rules as to collateral attack are applicable with full force to proceedings in rem and quasi in rem, such as adjudications of insanity. * * *” 15 Standard Ency. of Procedure, 400. See, also, Wirsig v. Scott, 79 Neb. 322, 112 N. W. 655.
It follows that the county court of Polk county had jurisdiction both of the subject-matter and of the person of the defendant Warner in the proceeding begun March 29, 1929, and upon collateral attack, its judgment and proceedings therein were entitled to full faith and credit, and were properly admitted in evidence by the trial court. Herter v. Herter, 97 Neb. 260, 149 N. W. 795; Holliday v. Shepherd, 269 Ill. 429, 109 N. E. 976; Spiers v. Hendershott, 142 Ia. 446, 120 N. W. 1058; Chase v. Spencer, 150 Mich. 99, 113 N. W. 578; McAllister v. Rowland, 124 Minn. 27, 144 N. W. 412.
Indeed, this judgment of the county court of Polk county having been entered granting Leo M. Warner the relief expressly designated in his petition, it is not subject to attack by him or in his behalf. 4 C. J. S. 404, sec. 213; Schoren v. Schoren, 110 Or. 272, 222 Pac. 1096; Weander v. Johnson, 42 Neb. 117, 60 N. W. 353; Miller v. McGannon, 79 Neb. 609, 113 N. W. 170.
[39]*39In determining the sufficiency of the evidence to support the findings and judgment of the district court, appealed from, there are certain facts as to which no serious conflict is to be found in the proof. The defendant was 43 years of age. He had inherited approximately $5,000 in cash, of which he was about to come into possession. He is, and was, without doubt a moron, and his present degree of intelligence and mental competency has existed and remained unchanged for more than twenty years past. The question in fact is not whether the defendant is of impaired mentality, but the degree of mental impairment was for determination by the trial court. On this subject two expert “medical” witnesses testified in behalf of the defendant, and without substantial disagreement classify his degree of mental competency as the intelligence of a child between ten and twelve years of age. The evidence as to the determinative tests is that Warner was unable to perform those of a twelve-year-old child, but was able to successfully carry out the test for the next grade thereunder. These experts, on the basis of their test and observation, testify to the opinion that the defendant is not mentally incompetent to have the charge and management of his property. “It is obvious, however, that the opinions of even medical experts, though worthy of the most careful consideration, and respectful attention, and to be weighed with other testimony in reaching a conclusion, cannot and ought not solely to control the court or jury in the opinion they are to pronounce on the facts before them.” Woerner, American Law of Guardianship, 410.
In addition, as lay witnesses, we have relatives and close acquaintances of the defendant, who, in testifying, detail facts and circumstances relating to the conduct and life of defendant, on the basis of which they testify to opinions that the defendant is mentally competent to have charge and management of his property.
Opposed to this proof, we have the evidence of members of his father’s family, and others, who, likewise from the basis of observation, which the situation in which they [40]*40lived and contact with the defendant accorded them, testify to the opinion that the defendant is mentally incompetent to have charge and management of his property. The facts testified to by certain of these witnesses tend to support the conclusion that the defendant was never competent to, and did not, transact the important business transactions arising during his life; that so long as his father lived he transacted most of the defendant’s important transactions for him; that finally, in the year 1929, defendant’s mother, and his brothers and sisters, requested Dr. Frank W. Warner, a brother of the defendant, to handle the business and property of Leo M. Warner, the defendant. Circumstances appearing in the record indicate that Dr. Warner complied with these requests, and undertook the duties contemplated thereby. The record shows that it was at this time that the petition for the appointment of Dr. Frank W. Warner as his guardian was filed by the defendant, the signed consent of Dr. Warner to such appointment being indorsed thereon. It is further disclosed by the record that Dr. Warner duly qualified and continued to serve as such guardian until all moneys and personal property then belonging to the ward and coming into his possession as guardian had been disposed of as provided by law and the orders of said court, whereupon his resignation as such guardian was presented to and accepted by the county court, and he was thereupon on June 29, 1936, discharged as such. However, it appears that this order of the county court of Polk county neither expressly nor by implication in any manner changed or modified its determination as to the mental incompetency of defendant as necessarily made and determined in its order of April 15, 1929.
However, the conclusiveness of this evidence need not be determined. So considered, it is clear that the presiding judge in the district court accepted the testimony given in behalf of the plaintiffs and rejected the testimony offered in behalf of the defendant. The trial judge heard the testimony of Leo M. Warner and of the witnesses testifying in his behalf, and also the witnesses testifying for the peti[41]*41tioners. The demeanor of defendant’s witnesses was necessarily observed by him, as well as those who testified adversely to the defendant. He accepted as true and correct the testimony of plaintiffs’ witnesses and similarly rejected the testimony in behalf of the defendant. The trial judge’s opportunity for thus ascertaining the truth was greater than that afforded the members of this tribunal.
In consideration .of the entire record, we are impressed with the view that this case was correctly determined. The judgment of the district court is, therefore, in all things,
Affirmed.