“Section 11249 is decisive of the question.
It will be observed, by the language of the statute, that the appointment of a trustee is only authorized in case there is no guardian, and it is conceded, in this case, that, at the time of the trial, the insane person, Mildred I. Wiegand, had a duly appointed guardian who was not a party to the suit, and whose first entrance into the litigation was by the motion, made after judgment, to vacate or modify the decree as to alimony, on the ground that, under the statute, the trustee was powerless to represent the insane person in court, excepting according to the terms of the statute that there was no guardian, duly appointed and qualified, acting for her.
There is no question but that, under Article 4, Section 6 of the Constitution of Ohio,, this court, in cases like the one at bar, has jurisdiction to consider the questions presented in this case. This was determined in the well known case of Wells v. Wells, 105 OS. 471.
It is our unanimous judgment that the motion to vacate the judgment, on the application of the guardian, should have been granted, and the refusal of the court so to do was prejudicial to the substantial rights of the plaintiff in error, under the requirements of the statute above quoted.
Holding these views, the judgment of the lower court is hereby reversed as to the alimony alone, and the cause, as to that question remanded to the Court of Common Pleas for further proceedings according to law.”
(Vickery and Levine, JJ., concur.)