Section 10507-1, General Code, contains certain statutory definitions, as used in *Page 294 this act, among them being that "the term `incompetent' means any person, who by reason of advanced age, improvidence, or mental or physical disability or infirmity, is incapable of taking proper care of himself or of his property * * *." The terms "insane" and "lunatic" are defined as including "every species of insanity or mental derangement."
The Probate Court in its entry of appointment used the words of Section 10507-1, General Code, defining "incompetent". This becomes of importance for the reason that the appellant urges that inasmuch as this statute provides that the terms "insane" and "lunatic" "include every species of insanity or mental derangement" that such general definition includes the term "incompetent" as specially defined.
Section 10501-56, General Code (114 Ohio Laws, 320, 336), provides that appeal may be taken to the Common Pleas Court, by a person against whom it is made, from any order, decision or judgment of the Probate Court in a large number of enumerated proceedings, the last of which is "or in proceedings to appoint guardians or trustees for idiots, lunatics, imbeciles ordrunkards. The cause so appealed shall be tried, heard and decided in the Court of Common Pleas in the same manner as though the Court of Common Pleas had original jurisdiction thereof." This section does not include the defined word "incompetent".
Section 12223-23, General Code, provides that "a judgment rendered or final order made by * * * any * * * tribunal * * * inferior to the Court of Common Pleas, may be reversed, vacated, or modified by the Common Pleas Court upon an appeal on questionsof law." (Italics ours.)
This case revolves around the question as to whether or not, by virtue of the liberalizing Section 10214, General Code, and the definition of the term "insane" *Page 295 as appearing in Section 10507-1, General Code, the provisions of Section 10501-56, General Code, include a person found by the Probate Court to be "incompetent". The term "incompetent" as defined in Section 10507-1, General Code, does not appear in Section 10501-56, General Code. I am of the opinion that inasmuch as the Legislature has definitely defined the condition that may make one "incompetent" which definition the Probate Court adopted in its order appointing a guardian, the omission of that classification in Section 10501-56, General Code, is a definite declaration that in the case of the appointment of a guardian of an "incompetent" there should be no appeal on questions of lawand fact permitting a trial de novo. The right to review such cases is confined to the provisions of Section 12223-23, General Code, as held by the court below.
See: In Matter of Watts, 60 Ohio App. 307, 21 N.E.2d 129.
I am not persuaded that the majority has effectively answered the authority of that case. It seems to me to be clearly applicable to the case at bar.
I am of the opinion that the court below committed no error in dismissing the appeal.
Judgment of the court below should be affirmed. *Page 296