This cause was heard upon an appeal from a judgment of the small claims court. The parties were present before the court and the matter was duly argued.
This suit is upon a contract made by a person who had been adjudged an incompetent. The incompetent had issued to plaintiff a check which was dishonored by the bank upon which it was drawn.
Section 394.22, Florida Statutes 1953, provides that a person who has been adjudged an incompetent “shall be presumed to be incapable” of making a contract. Section 744.61 provides that suits to establish the validity of claims against an incompetent shall be brought jointly against the guardian and ward.
Under the circumstances here it was improper to enter a judgment against the guardian. In Farrior' v. Hughes (Fla.), 151 So. 377, there had been no adjudication of incompetency.
Thereupon, it is ordered and adjudged that the final judgment of the small claims court is set aside, and this cause is remanded to the small claims court for a new trial.