Swain v. Eardley

JOHNSON, Judge. This is an appeal from an order of the County Judge of Escambia County, Florida, denying appellants’ petition to vacate an order adjudging appellants incompetent and appointing a guardian. The facts are, the appellants had been residents of the Escambia County Home for about three years. They are both at or near 80 years of age. A nephew, and apparently their nearest and only kindred, filed a petition to have them adjudged incompetent and a guardian appointed. This was on July 27, 1964. The County Judge issued proper notice directed to each of the appellants setting the date of the hearing for July 29, 1964 at 3:00 P.M. This notice was served on the appellants on July 29, 1964, but whether it was served before or after 3:00 P.M., the time scheduled for the hearing, or not, is not shown. There was no showing that the parties were violent or liable to do themselves or anyone else any harm, so as to require an immediate hearing, which, admittedly could be done by the County Judge under a showing of such circumstances. This does not appear to be the case here, and therefore we feel that the “reasonable notice” as re [737] quired by Florida Statutes 394.22(4), F.S.A. was not given in this case. The appellants’ petition to vacate does not deny that the report of the examining committee was correct, nor that the appellants were incompetent then nor allege that they are competent now. There is no showing made that the appellants have been damaged nor their property dissipated. In fact, it appears that the County Judge took the extra precaution of having all checks or drafts countersigned by “Alma Ward” (whom we think was the County Judge’s secretary or clerk). We think due process was not afforded the appellants because of the lack of reasonable notice in advance of the hearing on the petition but because of the age and apparent infirmities of the appellants, this court will not attempt to set aside the adjudication of incompetency and appointment of guardian, but we do reverse the order appealed from with directions that the present County Judge issue a new and further notice to the appellants, giving them a reasonable time to arrange counsel and that further inquiry be made into the competency of said appellants, with directions to enter such further orders, after proper hearing, as to him may seem to be for the best interest of said alleged incompetents in accordance with chapter 194 of Florida Statutes including affirming the acts of the present guardian, if found to be proper. Reversed and remanded with directions. CARROLL, DONALD K., J., concurs. RAWLS, C. J., dissents.