Thompson v. Hall

77 Me. 160

• Court: Supreme Judicial Court of Maine
• Decided: March 6, 1885
• Status: Published

Opinion

Danforth, J.

The first named case is a petition for a writ of? certiorari to issue to the probate court for the county of Sagadahoc asking that its records relating to the appointment of ai guardian for Frances J. G. Thompson be quashed.

The second case is a petition that the guardian so appointed! be prohibited from the further exercise of his duties as such.

In Peters v. Peters, 8 Cush. 529, Shaw, C. J., in a very able* and exhaustive opinion held that the supreme court of Massachur setts was not authorized under the statutes of that commonwealth, to issue a writ of certiorari to the probate court in any case.. The reasoning of that opinion will apply equally well to the law of this state and seems to be conclusive in favor of the conclusion, there reached. It is true that the case then under consideration differed materially from that now before this court, and the* authority of the court to issue such a writ was not necessary to* the disposal of the case, yet the argument is none the less, convincing.

But if the court were authorized to issue such a writ we are* satisfied that there is no such error in the records in question as. to require it.

The objection raised here is that the record of the proceedings-; under which the guardian was appointed does not show jurisdiction in the court so appointing. Were the petition of Joseph, M. Trott the initiative of the proceedings complained of the* objection would be, clearly, well founded. Overseers v. Gullifer, 49 Maine, 360. But such is not the case. It is true that the previous proceedings are not incorporated into this petition. Nor is that necessary. It does refer to them. It is addressed to the "judge of probate for the county of Sagadahoc.” It alleges that the petitioner is a " friend of Frances J. G. Thompson who has been adjudged by the honorable court to be of. unsound mind and incompetent to manage her own affairs, or to protect her rights, and that Orville A. Robinson who was appointed guardian of said Frances has refused to qualify for said trust.” Here is a direct reference to the prior proceedings of the court, and to proceedings which were unfinished and still upon -the docket of the court, for they could not be finally disposed of until the appointee had not only accepted but qualified by giving the required bond. Here was a sufficient description to enable the court to identify its own unfinished record and to the respondent notice of the adjudication of the unsoundness relied ■upon. The petition of Trott was not therefore the commencement of a new process, but the continuation of one already pending. Upon examining these prior proceedings no defect is found in them, none has been pointed out or claimed to exist. ÜBoth sides rely somewhat upon R. S., 1871, c. 67, § 23, revision ■of 1883, c. 67, § 26, giving the probate court authority to ¡appoint a new guardian in case of the death, resignation, or 'removal of the guardian, " without further intervention of the municipal officers.” But this section is not applicable. Here is ¡neither a death, resignation or removal. That could be only after the guardian had been legally qualified and the proceedings ¡finished. Here was a refusal to accept, leaving the proceedings ¡unfinished, the purpose in view unaccomplished. If Robinson Fad been present and declined the appointment when made, there ¡can be no doubt that the respondent being present, the court ■could have appointed another person. It can make no difference •that this case was continued one or more terms to await the ¡result, except perhaps the necessity of giving a new notice, as ■was done here, for it would be proper that the respondent should ¡be heard as to the person to be appointed as well as upon the •question of the necessity of appointing any one. In either case the decree as to unsoundness already made is the foundation of the appointment.

It is true that the last decree is informal and of itself insufficient. So far as it relates to the unsoundness of the respondent, ,it is unauthorized by the petition. That does not ask for any inquiry into that question. It simply alleges that she has already been decreed unsound in the language of the statute authorizing the appointment of a guardian ; that the attempted appointment had failed by reason of non acceptance, and asks that the work may be completed by the appointment of another. That part of the decree which is in conformity with the petition, and which has a legal basis to rest upon, cannot be made invalid by another part which is not authorized, and which is not necessary to a disposition of the case.

The result is, the records of the probate court taken as a whole so far as they relate to this ease, show that the guardian has been legally appointed, and therefore neither the writ of certiorari nor prohibition can be granted.

Exceptions in petition for certiorari overruled.

Petition for prohib ition denied.

Peters, C. J., Walton, Libbey, Emery and Poster, JJ., concurred.