Colby v. Jacobs

GIBSON, J. This is an original action commenced by Lula O. Colby for a writ of prohibition directed to Honorable H. R. Jacobs, county judge of McClain county, prohibiting him as such judge from proceeding in the matter of appointment of a guardian for petitioner as an alleged incompetent person. A petition was filed in the aforesaid county court under authority of sections 1445, 1447, O. S. 1931, for the purpose of declaring the present petitioner incompetent and for the appointment of a guardian of her estate. Thereafter, on October 22, 1936, the county court ordered said cause set for hearing on the 30th day of that month and directed that notice thereof be given by posting notices and by personal service on the petitioner herein. Thereupon, notice was issued to petitioner and served by the sheriff by leaving a duly certified copy thereof at petitioner’s usual place of residence with J. H. Colby, her husband. No personal service of the notice was had upon petitioner. In such case the provisions of section 1445, O. S. 1931, are mandatory. Unless the prescribed notice as therein provided is given, the county court acquires no jurisdiction to hear and determine the proceedings for the appointment of guardian. Martin v. O’Reilly, 81 Okla. 261, 200 P. 687. In the first paragraph of the syllabus of that case the rule was stated as follows: “Held: In a proceeding for the appointment of a guardian of a person upon the ground that such person is mentally incompetent to manage his property, that the provisions of said statute (1445, O. S. 1931) *171 are mandatory, and unless the prescribed notice is given,- the court is without jurisdiction to hear and determine such proceeding.” Under authority of Daniels v. Barnett, 122 Okla. 202, 253 P. 300, prohibition is the proper remedy where the county court without sufficient notice, and therefore without jurisdiction, attempts to appoint a guardian for and take possession of the estate of an alleged incompetent person. Section 1445, O. S. 1931, reads as fol’ows: “When it is . represented to the county court upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, the judge .must cause notice to be given to the supposed insane or incompetent person, of the time and place of hearing the case, not less than five days be- • fore the time so appointed, and such person, if able to attend, must be produced before him on the hearing.” The county court's jurisdiction in the instant case depends upon the notice given to petitioner’s husband.' The respondent takes the position that section 1445, supra, prescribes no mode of service of notice and that said notice constituted a citation (sec. 1077, O. S. 1931), and the notice being a citation, the officer was required to make service thereof in the manner provided for service of summons in a civil action (sec. 1076, O. S. 1931). The two latter sections do not control the mode of service of notice in proceedings of the character here under consideration. Section 1445, supra, is plain and unambiguous in its provisions as to service: “The judge must cause notice to be given to the supposed insane or incompetent person. * * * ” The county judge in the instant ease ordered that notice be “personally served upon Lula O. Colby.” This order complied with the statute, but service was not made as ordered. The provision that notice be “given to” the alleged incompetent certainly contemplates personal service as was ordered by the court. Personal service ordinarily means actual delivery of process to the one to be served‘in person, and'does not include service by leaving a copy at the'usual place of residence. 50 C. J. 467. See, also, Clemens v. State, 5 Okla. Cr. 119, 113 P. 238. Our conclusion here is supported by ’the Circuit Court of Appeals in Martin v. White, 76 C. C. A. 671, 146 Fed. 461, wherein the court had under consideration a statute containing substantially • the same language as ours, and which provided, “the commissioner shall cause notice to be given to the supposed insane person of the time and place appointed for hearing the case.” It was there held that the provision of the statute was susceptible of no other meaning than that notice should be personally served upon the individual to be affected thereby. Here the service was not so made, and the county court was therefore without jurisdiction to proceed with the appointment of guardian. Such want of jurisdiction is sufficient under the decision in Daniels v. Barnett, supra', to warrant issuance of the writ of prohibition, and it is so ordered. McNEILL, C. J., and RILEY, BAYLESS, PHELPS, and CORN, JX, concur. OSBORN, V. C. J., and BUSBY and WELCH, JX, dissent.