Cuyahoga Common Pleas. 323 opened. If one is constitutional the other is. The power of the legislature in each case is based on the same principle. And there is a good reason for the omission by the legistature of any provision as to the intent to sell, as a substantial part of the crime. Ever since the passage of the laws prohibiting the sale of "intoxicating liquors to be drank on the premises" the great difficulty has always been to "prove that the liquor sold was intoxicating." It was always attempted to make it out something that was similar but not intoxicating, and not just the kind of liquor or the strength charged to have been sold. This provision was intended to cover just that difficulty. And there is still another reason. If all persons engaged in the business of selling intoxicating liquors are allowed to keep their doors open, human experience teaches us that many will use the permission as a blind and keep open for selling such liquor, and that it would be exceedingly difficult to detect the deception. Considerations of this kind always have influence in prohibitory legislation. Following the spirit of the decisions I have cited, and for the reasons given, the court holds that in order to make the offense charged in this proceeding complete, it is necessary to charge an intent to sell. What, then, becomes of that part of the information charging intent, and of the portions of the charge of the court under consideration? The part of the information charging intent is now surplusage, and the charge of the court in regard to it, if it is an error, is one favorable to the accused, and under all established principles, one which he cannot take advantage of. My attention has been called to the opinion of Judge Robertson of the common pleas court of Hamilton county, Munzebrock v. State, ante 277, whose ruling was different upon this point. While having the greatest respect for the opinion of that court, I am constrained to believe that the line of the decisions referred to must have been overlooked by the learned judge. The report of his decision is very meager, no authorities are referred to, and I am led in this instance to a different conclusion. This disposes of all the grounds of error complained of, I believe, and the petition in error, therefore, is dismissed. 360 APPOINTMENT OF GUARDIAN. [Superior Court of Cincinnati, Special Term, 1888.] ISAAC M. JORDAN, GUARDIAN, V. CHARLES T. DICKSON ET AL. 1. In the hearing of an application for the appointment of a guardian of an imbecile before the probate court, notice to the alleged imbecile is not jurisdietional, and a failure to give notice is an irregularity which can be complained of only in a direct proceeding to set aside the order of appointment in the probate court or to reverse it on error. 2. If notice is jurisdictional, presence of the alleged imbecile at the hearing, with actual notice thereof, in the absence of any express statutory requirement is sufficient to confer jurisdiction. TAFT, J. Plaintiff as guardian of Harry R. Dickson, an imbecile, seeks to recover from Charles Dickson, Harry's brother, real and personal estate in Chicago and this city which he claims was obtained by the defendant †See also, Jordan v. Dickson, ante 147. 360 Jordan, Guardian, v. Dickson et al. through fraud and undue influence from his ward who has always been of unsound mind. He sets out at length in his petition the various transactions by which the transier to Charles was effected and asks this court to set aside such of them as may be necessary to restore Harry's title. Charles answers, admitting many of the transactions, but denying that there was any fraud or undue influence in them; denying that Harry was or is an imbecile, and denying that plaintiff is Harry's duly appointed guardian. By way of cross-petition, he avers Harry's soundness of mind, and asks that he may be made a party to quiet his title. Harry, being made a party, answered plaintiff's demurrer to that answer was sustained. His amended answer, filed by leave against objection of plaintiff, denies that he was an imbecile either at the times of the transactions set forth by plaintiff, or at the time of the appointment, and that he is an imbecile when filing his answer. He denies that undue influence or fraud was exercised by his brother as charged, and disclaims any interest in the property described in the petition. He alleges that he had no notice of the application for plaintiff's appointment as his guardian, and that it is therefore void. He asks that plaintiff's petition be dismissed. By way of cross-petition he avers that plaintiff is interfering with his rights, and prays that the appointment may be set aside and that the plaintiff may be perpetually enjoined from acting thereunder. The first issue to be considered is the right of plaintiff to bring this action for Harry Dickson's benefit. If he is Harry's guardian, then the statute makes it his duty to bring it, if what he alleges is true. It is claimed that plaintiff is not Harry's guardian, because no notice was given to Harry of the application for the appointment. The questions presented under this issue are: 1st-Was notice to Harry jurisdictional? 2d-If jurisdictional, was it given or waived? First-In sustaining the demurrer to Harry's original answer, I held that his admission that plaintif was duly appointed his guardian July 30, 1886, and was still acting as such, concluded him from appearing by separate pleading in this court to contest plaintiff's right to represent him. Jordan v. Dickison, ante 147. In the course of that holding and in answer to an argument of counsel, I expressed an opinion that although the statute made no provision for it, notice ought to be given. I relied on the following cases: Cox v. Cox & Anderson, 2 Dec. Re., 20; Wheeler v. State, 34 O. S., 394; Chase v. Hatheway, 14 Mass., 222; Eddy v. People, 15 Ill., 336; In re Dozier, 4 Baxter, 81; In re Whitenack, Re. 20; 3 N. J., Eq., 252; In re Russell, 1 Barb. Ch., 38; In re Tracy, 1 Paige, 580. These were cases in which the finding of lunacy was attacked in a direct proceeding on error. Admitting the correctness of the views already expressed, the question still remains to be answered, what is the effect of a want of notice? Does it only affect the regularity of the proceedings, or does it render them void? The Massachusetts and Alabama cases hold that a want of notice renders the appointment void and subject to collateral attack. Conkey v. Kingman, 24 Pick., 115; Smith v. Burlingame, 4 Mason, 121; McCurry v. Hooper, 12 Ala., 823. There is, however, a decision by our own Supreme Court, which prevents me from following these authorities. The case of Shroyer v. Richmond & Staley, 16 O. S., 455, contains a very full and clear opinion by Judge Scott, on the power and jurisdiction of the probate courts of this state in the appointment of guardians which has often since been cited with approval by the Supreme Court. He says: "Proceedings for the ap Cuyahoga Common Pleas. 360 pointment of guardians, are not inter partes, or adversary in their character. They are properly proceeding in rem; they are instituted, ordinarily, by application made on behalf of the ward, and for his benefit; and the order of appointment binds all the world. In such a proceeding, plenary and exclusive jurisdiction of the subject-matter has been conferred by statute on the probate court, and that jurisdiction attaches whenever application is duly made to the court for its exercise in a given case. It is not essential to the jurisdiction, that the ward be actually before the court, unless, by reason of his right to choose a guardian, or for other cause, the statute so require. And when jurisdiction has attached, the court has full power to hear and determine all questions which arise in the case, whether in regard to the status of the ward or otherwise; and no irregularity in the proceedings, or mistake of law in the decision of the questions arising in the case, will render the appointment void or subject it to impeachment collaterally. All questions arising in the case, become res adjudicatae, by the final order of appointment, which binds all the world until set aside or reversed by a direct proceeding for that purpose. The facts thus ascertained, and the sufficiency of the evidence upon which they were found by the proper court, can not be collaterally inquired into and determined, de novo, upon parol testimony. Where the record shows nothing to the contrary, it will be conclusively presumed in collateral inquiries, that the final order was made upon a proper showing, by the proofs, of all the facts necessary to authorize it." If the probate court can acquire jurisdiction in a case without bringing the alleged imbecile before it, as this language shows. it follows that notice, though the regularity of the proceedings requires it, is not jurisdictional. Want of it, is therefore only an irregularity which can not be complained of in a collateral proceeding. So in Bethea v. McLennon, 1 Iredell, 526, it was held that although the alleged lunatic is entitled to be present at the inquisition, the denial of this right is only an irregularity, and that after confirmation by the court such in quisition must be regarded with the respect due such solemn proceedings until it be reversed or superseded. See also Dutcher v. Hill, 29 Mo., 274; Rogers v. Walker, 6 Pa. St., 372. Nor is such a conclusion without analogous precedent in this state. The appointment of a guardian it appears is a proceeding in rem. A failure of notice to an interested party in such a proceeding, though notice be required, does not avoid it unless the statute makes notice jurisdictional. In the case of Sheldon v. Newton, 3 Ohio St., 494, 500, the proceeding of an administrator to sell real estate to pay debts of a decedent was held to be a proceeding in rem. The statute provided that the heir should be made a party defendant. The action was by the heir in ejectment to recover land from the purchaser on the ground that he had not been made a party to the proceeding. Judge Ranney in deciding the case said that he was strongly of the opinion that such an omission went only to the regularity of the proceeding, and not to the jurisdiction of the court; and that its final order could only be set aside or reversed on error, and could not be treated as a nullity in a collateral action. The conclusion I have reached upon this point does not conflict with my former holding, that the appointment is conclusive evidence of the ward's incapacity to do anything which is made by law the duty of the guardian. That holding was chiefly based on the inconvenience and absurdity of establishing the relation of guardian and ward by a proceeding in a court of record having plenary and exclusive jurisdiction for the purpose, and then allowing that relation 360 Jordan, Guardian, v. Dickson et al. and the necessary incapacity of the ward to be overthrown by collateral attack. Notice should be given, and if not given the appointment may be set aside in a direct proceeding. This will sufficiently protect the ward from abuse by a proceeding which in the theory of the law and generally in fact is for his benefit. Failure of notice in such a proceeding does not work the injury which it does in a civil action inter partes, because, as was said in Dutcher v. Hill, 29 Mo., 274, "The proceedings under the law concerning insane persons are not like a final judgment which is unalterable after the end of the term at which it was rendered. They are in fieri, like a cause pending; and irregularities in them or defects of the record, may be obviated at any time so long as the lunatic is under the control of the guardian appointed for him. It is conpetent for the court to discharge the lunatic at any time from the care and custody of his guardian as soon as it is informed of their regularity of the proceeding." These remarks are as applicable to our Ohio procedure as to that of Missouri. It is claimed by counsel that though the decision in Shroyer v. Richmond & Staley, cited above, be given the full effect I have indicated. the proceeding at bar is not a collateral, but a direct proceeding to attack the appointment, in which a want of notice may, therefore, he made the ground for attack. The Revised Statutes provide for an appeal to the common pleas court from an appointment, and for proceedings on error to the same court, the first within twenty days from the appointment and the second within two years. By sec. 6316, Rev. Stat., whenever the probate judge shall be satisfied that letters of guardianship have been improperly issued, he shall terminate the guardianship, and I presume that a refusal by the probate court to set aside the appointment for irregularity in making it, may be carried up on error because such refusal is a final order within the statutory definition, i. e.: "An order in a special proceeding affecting a substantial right of a person interested." By sec. 587, Rev. Stat., the exclusive power to appoint and remove guardians except as otherwise provided by statute, is vested in the probate court. The above are the only provisions of the statute for the removal of guardians or the setting aside of their appointment. It follows, therefore, that the general equitable jurisdiction of this court gives it no right in a direct proceeding to set aside an order of the probate court appointing a guardian, where that court had jurisdiction. Courts of equity originally had full control over the creation and termination of the fiduciary relation of committee and insane ward and still retain it in inany states, but in Ohio under the present law they have none. Counsel relies on Messenger v. Bliss, 35 O. S., 587, to show that a court of equity may remove a guardian in a direct proceeding. That was an action in equity by a ward to enjoin his guardian from interfering with his property where the guardian had been appointed under a statute expressly providing that the appointment should only be prima facie evidence of the imbecility for which the appointment was made. This necessarily made the appointment only prima facie evidence in any court of the guardian's right to act as such. Thus the exclusive jurisdiction of the probate court to remove the guardian was taken away, by taking from its finding the conclusive character which it ordinarily has. The power to give relief to unwilling wards who were able to overcome the prima facie right of the guardian to act as such, was to that extent again found in the general jurisdiction of a court of equity. This is the ground upon which the case of Messenger v. Bliss expressly Cuyahoga Common Pleas. 360 rests, and the proviso of the prima facie effect of the appointment of guardians for imbeciles having now been repealed, it can not be an authority at bar. Second-But if I am wrong and notice is jurisdictional, was notice given? The original record shows no notice to Harry. Counsel claims that it is therefore void, and that no proof of notice can be made. He contends that the probate court has such special and limited jurisdiction that its record must recite the facts which give it jurisdiction both of the subject-matter and of the person, or be of no effect. The question of the jurisdiction of the probate court and of the presumptions to be indulged in its favor has been a much mooted one, but I think that the tendency of our Ohio cases and of modern authorities generally is to give to its judicial acts, when clearly within the jurisdiction as to subject-matter, the same intendment as to jurisdiction of the person as is extended to courts of so called general jurisdiction. When the record is silent as to the jurisdiction over the person, it will be presumed over the person, it will be presumed in a collateral proceeding. Scobey v. Gano, 35 O. S., 550; Maxsom v. Sawyer, 12 O. R., 195; Kimball v. Fisk, 39 N. H., 119; Davis v. Hudson, 29 Minn, 28; Johnson v. Beazley, 65 Mo., 250; Bostwick v. Skinner, 80 Ill., 147; Propst's Ex'rs v. Meadows, 13 Ill., 157; Hutts v. Hutts, 62 Ind., 214. In this state, a judgment of a court of general jurisdiction which is silent as to jurisdiction over the person may be collaterally attacked by showing that no such jurisdiction was acquired. The presumption in its favor is a rebuttable one. Of course the same rule would apply to judgments of the probate court. This brings us then to a discussion of the question, was sufficient notice given to Harry of the application of plaintiff to be appointed his guardian? The only competent evidence in the case upon this point shows that Harry Dickson, went to the probate court in company with Nathan Jordan and requested the judge to appoint plaintiff his guardian; that the judge proceeded then to examine him for the purpose of determining his mental condition; that he directed two physicians to make further examination, which was done, and upon their reports and the Judge's examination, the appointment was made. There is no doubt that so far as Harry was able he consented to and requested the appoint ment. In Lackey v. Lackey, 8 B. Monroe, 107, it was held that when a defendant in an inquisition of lunacy was brought into court, and the inquisition was held in open court, there was no necessity for either notice or writ. The court said that the chancellor was the protector of persons of unsound mind, and it would be presumed that he had done his duty. This case is cited with apparent approval by Judge Okey in Cox v. Cox, 2 Dec. Re., 20. The Statute of Indiana, as to the appointment of guardians for the insane, provides that upon the proper written statement being filed, the court shall cause the alleged lunatic to be produced in court, and an issue to be made by the clerk of the court, denying the facts set forth in the statement, which shall be tried by a jury. In Nyce v. Hamilton, 90 Ind., 419, the petitioner appeared with the alleged lunatic made his application, an answer was filed, the issue tried and a verdict returned by the jury without leaving their seats. The case was carried on error to the Supreme Court, and a reversal asked on the ground that no notice of the proceeding had been served on the subject of investigation. The |