Swaney v. White

94 So. 2d 610, 230 Miss. 865, 1957 Miss. LEXIS 433

• Court: Mississippi Supreme Court
• Decided: April 22, 1957
• Docket: No. 40458
• Status: Published

Opinions

Arrington, J.

The appellant, Fred Swaney, appeals from a final decree of the Chancery Court of DeSoto County appointing W. A. White, Sheriff of DeSoto County, guardian of William M. Lowman, non compos mentis.

The facts, which are not in dispute, are substantially as follows: William M. Lowman, 66 years of age, was a resident citizen of DeSoto County. He lived in a trailer and was found seriously ill and in a coma by the deputy sheriffs of DeSoto County on June 2, 1956, who carried him to the North Mississippi Hospital at Holly Springs, Marshall County, Mississippi. Upon a search of his trailer, they found cash and other securities of the ápproximate value of between $35,000 and $45,000, which was turned over to W. A. White, the Sheriff. On June 4, 1956, White filed a petition in the Chancery Court of DeSoto County asking for a hearing as to Lowman’s mental condition and for the appointment of a guardian. On June 4, 1956, the chancellor by a fiat directed the chancery clerk of DeSoto County to issue process to William M. Lowman, returnable on June 15 before the chancellor, to show cause why he should not be adjudged mentally incompetent and a guardian appointed for his estate and person. Personal service was had upon Low-man by the Sheriff of Marshall County on June 8, 1956.

On June 13, 1956, Lowman filed petition in the Chancery Court of Marshall County for adjudication as a non compos mentis and for the appointment of Fred Swaney as guardian. This petition was joined in by Fred Swaney, who signified his willingness to serve as guardian. Lowman was examined by three physicians, all of whom certified that he was suffering from a mental condition. On the same date the Chancery Clerk of Marshall County appointed Swaney as guardian, and he qualified as such. On June 15, 1956, the hearing was held in DeSoto County on the petition filed on June 4 by White, the Sheriff. To this petition a general demurrer, two special demurrers, answer and cross-bill were filed. The chancellor held that the appointment of Swaney as guardian by the Chancery Clerk of Marshall County was null and void and appointed "White as guardian, and he qualified to serve.

The record shows that the chancellor proceeded under Section 6909-02 of the Mississippi Code of 1912, as amended, which reads as follows:

“The chancellor or clerk of the chancery court of the proper county may appoint guardians of the person and estate, or either, of persons adjudged to be of unsound mind under the provisions of this act upon their own motion or upon the application of a relative or friend of such person or upon the application of any other interested party. If any such person who is alleged to be of unsound mind and incapable of taking care of his person or property shall not have been so adjudged, then any relative or friend of such person or any other interested party may file a sworn petition in the chancery court of the county of the residence of such person setting forth that such person is of unsound mind and incapable of taking care of his person and estate, or either, but that such person be not in need of confinement or special treatment. Upon the filing of such petition the chancellor of said court shall by order fix the day, time and place for the hearing thereof, either in term time or in vacation, and the person who is alleged to be of unsound mind shall be summoned to be and appear before said court at the time and place fixed, which said summons shall be served upon such person not less than five days prior to the date fixed for such hearing. At such hearing all interested parties may appear and present evidence as to the truth and correctness of the allegations of the said petition, and if the chancellor should find from the evidence that such person is of unsound mind and incapable of taking care of his estate and person, or either, the chancellor shall appoint a guardian of such person’s estate and person, or either, as the case may be.....”

We are of the opinion that the chancellor had jurisdiction under the above quoted section. Lowman was a resident of DeSoto County, and he was without relatives. The petition was filed by the sheriff who had possession of his property and who was an interested party under this section of our statute. The record shows that the chancellor took jurisdiction of this proceeding on June 4, 1956, and that the acts of the Chancery Clerk of Marshall County on Juno 13, 1956 in appointing Swaney as guardian were of no effect.

We find no merit in this appeal and it follows that the decree of the chancellor is affirmed.

Affirmed.

McGeliee, G. J., and Lee, Holmes and Ethridge, JJ., concur.