4. It is not enough that such person may have learned of the pendency of the proceeding. The notice must be given under the order of the judge of probate, and in writing.

5. A mentally incompetent person cannot consent to any legal proceedings so as to waive any of his legal rights relating thereto; and, if competent, the probate court has no power to appoint a guardian for him or his estate, even if all his relatives and friends should so request, and he desire and consent to such appointment.

6. A decree by the probate court, adjudging an alleged incompetent person to be mentally incompetent to take care of himself and manage his property, is essential, and such adjudication should appear of record.

7. Notice to the relative of a poor person, sought to be charged with his support under How. Stat. § 1742, is essential to confer jurisdiction on the circuit court of the proper county to make any order in the premises.

Certiorari to set aside order of probate court appointing a guardian for an alleged incompetent person, and of circuit court adjudging a relative liable for the support of a poor person.

Argued January 21, 1886. Decided February 10, 1886. The facts are stated in the opinion.

Sawyer & Knowlton and F. A. Baker, for petitioner:

CIRCUIT COURT PROCEEDINGS.

The circuit court never acquired jurisdiction of the person of Mrs. North, the statutory notice not being given her: How. Stat. § 1742. Where a statute prescribes the mode of acquiring jurisdiction of the person that mode must be complied with or the proceedings will be a nullity: Bloom v. Burdick, 1 Hill, 130; Merrill v. Montgomery, 25 Mich. 73; Halsey v. Hurd, 6 McLean, 14; Smith v. Rice, 11 Mass. 506-12. This is a summary proceeding, not according to the course of the common law, and those who wish to avail themselves of this statute must be confined strictly to its provisions: Smith v. Superintendents, 34 Mich. 58; Logwood v. Huntsville Bank, Minor (Ala.) 23; Childress v. McGehee, Ib. 131; Crawford v. State, Ib. 143; Yancey v. Ilankins, Ib. 171; Hamilton v. Probate Court of North Providence, 9

59 MICH.-40

R. I. 204; Bloom v. Burdick, 1 Hill. 130. Parties to, or affected by judicial proceedings, whether in Rem or Personam, are by law entitled to notice by service of process or citation, and such notice is essential to jurisdiction: Smith's Probate Law, 94-5; Palmer v. Oakley, 2 Doug. 433; Smith v. Rice, 11 Mass. 512; In re Whitenack, 3 N. J. Eq. 252. The failure to give such notice to Mrs. North, personally or by leaving same at her place of residence, rendered the order of the circuit court for the support of Charles a nullity: Kiser v. Overseers, 3 N. J. L. (2 Pen.) 410; Allis v. Morton, 4 Gray 63; Hathaway v. Clark, 5 Pick. 490; Smith v. Rice, 11 Mass. 506.

The statute permits the superintendents of the poor of the county where the poor person may be, to apply to the circuit court of the county where the relative sought to be charged with his support may dwell, for an order for such support: How. Stat. § 1742. The words, "may dwell," as here used, not only cover the place of residence but "sojourners" also, because there is no provision in the statute for obtaining jurisdiction of the person, where the party proceeded against is beyond the jurisdiction of a court, by publication or otherwise; hence the application must show that such party is a resident of the county where application is made, or at least must not show that he is a sojourner beyond the jurisdiction of the court.

This statute cannot be made to reach cases not provided for or contemplated by its terms. It confers upon the court power only to "order such of the relatives of the poor person, as appear to be of sufficient ability, to relieve and maintain him: How. Stat. § 1743, and makes no provision for compelling the estate of a relative, living or dead, to support a poor person. It names father, mother and children and stops there [section 1741] and only applies to such of those as appear to be of sufficient ability, and this refers to mental as well as financial ability. This is manifest from the order to be made by the court, which is in no sense a judgment: Smith v. Superintendents, 34 Mich. 58, and if the order is not complied with no execution can issue, but it must be enforced by attachment: How. Stat. § 1747; Smith v. Superintend ents, 34 Mich. 58, or under sections 1747-8 by an action against such relative as for moneys paid, laid out and expended. The statute confers a right and gives a remedy for its violation and cannot be enlarged beyond its purpose: Thurston v. Prentiss, 1 Mich. 193; Renwick v. Morris, 7 Hill, 575; Smith v. Lockwood, 13 Barb. 209.

The order made is a judgment or order against the guardians, as such, and directs them to confiscate the ward's estato to satisfy the same. A guardian cannot be sued in his representative capacity so as to render the estate of his ward liable. The suit or proceeding must be against the ward, and then if the guardian fails to pay the judgment his bond may be put in suit; Raymond v. Sawyer, 37 Me. 406; Robinson v. Hersey, 60 Me. 225; Allen v. Hoppin, 9 R. I. 258; Dalton v. Jones, 51 Miss. 585. An order for future support only can be granted: How. Stat. § 1743; Wethersfield v. Montague, 3 Conn. 507; Cook v. Bradley, 7 Conn. 57. There is no common-law liability to support needy relatives and the statute does not authorize a volunteer to create a debt: Stone v. Stone, 32 Conn. 142; Gray v. Spalding, 58 N. II. 345; Mills v. Wyman, 3 Pick. 207; Jasper County v. Osborn, 59 Iowa, 208; Raymond v. Loyl, 10 Barb. 483; Schuler Domestic Rel. 318-19, hence no legal liability arises or indebtedness exists until the order of the court is made fixing such liability: Loomis v. Newhall, 15 Pick. 159; Stone v. Stone, 32 Conn. 142.

PROBATE PROCEEDINGS.

It may be contended that the appearance of the general guardian was a waiver of all irregularities and that Mrs. North, being under guardianship, cannot maintain any action in her own name. Our answer is that the proceedings in the probate court were without jurisdiction and void.

The probate court derives its jurisdiction to appoint guardians for insane and incompetent persons solely from low. Stat § 6314-15; and such appointment must be made on a fourteen days' notice to the supposed incompetent person of the time and place of hearing. When a statute requires service to be made upon the person, it means personal service, unless some other form is specified or indicated: Rathbun v. Acker, 18 Barb. 393; State v. Jacobs, 2 Jones (N. C.) 52; Gorham v. Luckett, 6 B. Mon. 146, and such notice must be in writing: Pearson v. Lovejoy, 53 Barb. 407; Wright v. Doolittle, 5 Vt. 390, and the notice contemplated by this statute is absolutely essential to confer jurisdiction: Smith v. Burlingame, 4 Mason 121; Allis v. Morton, 4 Gray, 63; Conkey v. Kingman, 24 Pick. 115; Chase v. Hathaway, 14 Mass. 222, and it is not enough that Mrs. North may have learned of the pendency of such proceedings by letter from Gruner: Rathbun v. Acker, 18 Barb. 393; Potwine's Appeal, 31 Conn. 381; Pearson v. Lovejoy, 53 Barb. 407. Nor did

her claimed appearance at the time and place of hearing waive her right to such statutory notice: Matter of Whitenack, 3 N. J. Eq. 252; Morton v. Sims, 64 Ga. 298, 303; Yancey v. Hankins, 1 Ala. 171, 172.

There was no order or decree made by the probate judge on said hearing adjudging Eliza North "incapable of taking care of herself and managing her property," and without such adjudication the judge had no power to appoint a guardian: Smith v. Burlingame, 4 Mason, 121; Chase v. Hathaway, 14 Mass. 222; Ilovey v. Harmon, 49 Me. 269, 276; Conkey v. Kingman, 24 Pick. 115; White v. Palmer, 4 Mass. 149; McCurry v. Hooper, 12 Ala. 823; Eslava v. Lepretre, 21 Ála. 504; Wait v. Maxwell, 5 Pick. 217; Hathaway v. Clark, Ib. 490; Holden v. Scanlin, 30 Vt. 177. It is claimed that such adjudication was announced by the judge of probate, but such decree must appear of record and cannot rest in memory alone: Holden v. Scanlin, 30 Vt. 177; Chase v. Hathaway, 14 Mass. 222-6; Eslava v. Lepretre, 21 Ala. 505-22. The judge of probate is only authorized to appoint guardians of incompetent persons when they are residents of the county and within the jurisdiction of his court: Duke v State, 57 Miss. 229; Lettle Estate, Myrick's Probate (Cal.) 97, and the petition discloses that Mrs. North had been absent from the State for several months, hence the probate court had no jurisdiction. But, admitting that the appointment of the guardians was valid, and the proceedings in the circuit court, in reality against Mrs. North, and the appearance for her, in fact, still the guardians had no right to so appear and their appearance conferred no jurisdiction on the court to act: 4 Wash. C. C. 207. To enable a statutory guardian to bind his ward by appearing in court, authority therefor must be found in the statute: Gibson v. Rees, 50 Ill. 386–9; Matter of Stratton, 1 John. 509; Sharp v. Pell, 10 John. 486. A defendant, non compos mentis, if of full age, should appear by attorney and not by guardian: Stigers v. Brent, 50 Md. 217; King v. Robinson, 33 Me. 114.

Mrs. North may take this proceeding in her own name and in her own right, because (a) the question of jurisdiction is always an open one, and a judgment rendered without it is a nullity, and may be so treated when it comes in question collaterally: Conkey v. Kingman, 24 Pick. 115; Miller v. Snyder, 6 Ind. 1; Mobley v. Mobley, 9 Ga. 247; (b) If not a direct, it is in the nature of a direct, proceeding to set aside the appointment: Messenger v Bliss, 35 Ohio St. 592; Linton v. Walker, 8 Fla. 144; Cuneo v. Besoni,

63 Ind. 524; (c) And the writ of certiorari is a writ of discretion, and rests in the discretion of the court.

E. D. Kinne, for respondents:

The proceedings sought to be set aside, attempted to preserve the estate of the petitioner and secure the compulsory support, care and maintenance, by her, of a pauper, idiot son. Manifestly these purposes are humane, and eminently just and wise, and unless some one has been misused, some rights invaded, or some principle of law violated, it would seem as if such proceedings ought not to be disturbed.

The first objection urged is that proper notice of the petition for the appointment of a guardian was not given. If, at that time, Eliza North was a non-resident of Michigan, as is claimed by her counsel, then the requisite statutory notice was given: How. Stat. 6334; but the return of the probate judge shows that he found her to be a resident of this State, and the decree recites the fact to have been established. But all question of due notice was waived by petitioner's actual appearance in person, in the probate court, on the day assigned for the hearing of the petition: Pixley v. Winchell, 7 Cow. 366; Rowley v. Stoddard, 7 John. 207; Vose v. Cockcroft, 44 N. Y. 415; Christal v. Kelly, 88 N. Y. 285; People v. Hydrostatic Paper Co. 88 N. Y. 623; O. & L. C. R. R. Co. v. V. & C. R. R. Co. 63 N. Y. 176; Matter of the application of Cooper, etc., 93 N. Y. 507; McCombs v. Johnson, 47 Mich. 592.

The return shows the presence of both Mrs. North and Mrs. Gibson, and of their counsel, and that petitioner submitted herself to the jurisdiction of the court; that she was present during the entire hearing and when the decree was made, and announced that no objection would be made if their wishes were consulted in the selection of the guardians. The requirement of fourteen days notice has no other object than to protect the alleged incompetent, and this purpose was subserved. She had an opportunity to be heard, and her "day in court." No appeal has been taken, and the petitioner and her friends have for nearly a year acquiesced in the proceedings, and fully recognized the authority of the guardians.

While petitioner is under guardianship she cannot review, in her own name, the action taken.

It is urged that petitioner was not because temporarily at Kansas City.

subject to the statutes, The application shows

that she is a resident of Washtenaw county, and the return