Jacobs v. Porter

GEIGER, P. J.,

dissenting.

Sec. 10507-1 GC, contains certain statutory definitions, as used in 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 his property. The terms “insane” and “lunatic” are defined as including every species of insanity or mental derangement.

1' The Probate Court in its entry of appointment used the words of §10507-1 GC, defining “incompetent”. This becomes of importance for the reason that the appellants urge that inasmuch as this statute provides that the terms “insane” and “lunacy” “include every species of insanity and mental derangement” that such general definition includes the term “incompetent” as specially defined.

Sec. 10501-56 GC, under the caption “CASES APPEALABLE FROM PROBATE COURT TO COMMON PLEAS COURT” 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 or drunkards”. 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”.

Sec. 12233-33 GC, under the caption “APPEALS ON QUESTIONS OF LAW TO COMMON PLEAS COURT” provides that a judgment rendered or final order made * ” by any tribunal inferior to a Court of Common Pleas “may be reversed, vacated or modified by the Common Pleas Court upon an appeal on questions of law.”

• This ease revolves around the question as to whether or not, by virtue of the liberalizing §10214 and the definition of the term “insane” as appearing in §10507-1, the provisions of §10501-56 include a person found by the Probate Court to be “incompetent”. The term “incompetent” as defined. in §10507-.1 does not appear in §10501-56. 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 §10501-56 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 law and fact permitting a trial de' novo. The right *288to review such cases is confined to the provisions of §12223-23 as held by the Court below.

See In matter of Watts, 60 Oh Ap 307.

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.