Mehmen v. Kappel

Thompson, J.- This is a companion case to No. 47832, In re Guardianship of Kappel, 242 Iowa 1021, 47 N.W.2d 825. Plaintiffs are daughters of the defendant Bertha Kappel. On J une 14, 1950, they filed their petition in the district court of Butler County, Iowa, alleging that their mother, the defendant, was then seventy-sis years of age; “that because of her age her mental condition has deteriorated and she is now unable to manage her property and business affairs and is unable to care for her person; that said defendant does not know or recognize her own children and does not receive proper care in the home in which she now lives.” Answer was filed by the defendant, and on. July 15,1950, she applied to one of the judges of the Twelfth Judicial District for appointment of a guardian under section 670,5, Code of 1950. The appointment was made on the same day, and on July 18, 1950, she filed an amendment to her answer in the action brought by plaintiffs, alleging the appointment of the guardian as a complete defense. On July 27, 1950, plaintiffs filed a reply to the answer as amended, pleading for the first time that the defendant was a-lunatic; and alleging her inability to understand the meaning of the application under which her guardian was appointed. Substantially the same allegation was made a part of the petition by an amendment filed on August 10,1950. [1034] Defendant moved to dismiss the petition and amendment thereto, alleging, in substance, that a guardian had been appointed ; that there was therefore no need for the appointment of- another guardian, that there was no showing that the appointment of the guardian was not for the best interests of defendant, and that there was no showing that the guardian was not a fit and proper and competent person to be such guardian. This motion was sustained by the trial court and plaintiffs’ petition was dismissed. Hence this appeal. The legal issues involved are identical with those discussed and decided in Cause No. 47832, and plaintiffs do not contend otherwise. In their brief and argument they concede that “the error in this case hinges and is dependent upon the propriety of the trial court’s ruling in the previous case. * * * If the preceding case is reversed, then this case should be reversed, if the former is affirmed, then this case should be affirmed. The preceding case is No. 47832 in this court.” We agree with this commendably frank and fair statement of counsel. Having affirmed Cause No. 47832 we must of course follow that decision here. — Affirmed. Wennerstrum, C.J., and Smith, Oliver, Garfield, and Mulroney, JJ., concur. Hays, J., dissents.