dissenting :
It is our opinion that appellees had no right to appeal from the order of the county court appointing appellant the guardian of this minor child. Section 2 of the act in regard to guardians and wards vests in the county courts the power to appoint guardians of minors when it shall appear necessary or convenient. Section 3 provides that if the minor is under the age of fourteen years the county court may nominate and appoint its guardian, but if it is above that age it may nominate its own guardian, who, if approved by the court, shall be appointed. The minor is the only necessary party to this proceeding. When it is brought to the attention of the county court, by petition or otherwise, that it is necessary or convenient that a guardian be appointed for a minor resident in the county or who has property in the county, section 10 of the act provides that the court shall assign a day for the hearing of the matter and shall direct that such notice of the hearing be given to the relatives of the minor residing in the county as it shall, on due inquiry, think reasonable. The only relatives who have any legal right to the custody of the child are its parents, and if they are living they would be proper parties under all circumstances, and the court is required to notify them. No other relative is a proper party except that the court desires his presence to assist it in making a proper disposition of the matter at hand. Relatives living at a distance and who are not familiar with the child and its surroundings might not be proper persons to notify, while relatives whose kinship is more remote but who live in the neighborhood of the child and who have taken a special interest in the child’s welfare would be proper parties. Who are. and who are not proper parties is a question for the decision of the court, and the court may call for advice whomsoever it pleases. Because of the natural interest of its kinsmen and the natural bond of union which we expect to find among those of the same blood, the law has deemed it wise to require the county judge to seek the aid of the child’s relatives in making a good choice of guardian, but the county court, under our statute, is the ultimate arbiter in this selection. Where all parties agree that a guardian should be appointed for the person of a minor child under fourteen years of age the statute vests in the county court the right to nominate and appoint as guardian some person whom its finds to be suitable. It is absolutely incompatible with the whole theory of the Guardian act that some relative dissatisfied with the selection made should have the right to appeal from this order. Can it be that when a minor above the age of fourteen years nominates some person for its guardian and the county court deems such person suitable and makes the appointment, some disappointed relative can drag this ward through all the courts of the State and thus keep the matter of the guardianship of the minor unsettled by litigation for years? The question answers itself. The theory and purpose of the act are that the proceeding shall be wholly informal and that the matter of the minor’s guardianship shall be promptly and definitely settled. Whether the guardian be nominated by the minor or by the court, when the court exercises its discretion and names some suitable guardian that proceeding is at an end. If the person appointed is not suitable, section 37 provides the method of procedure by which to have him removed.
Section 43 provides that “appeals shall be allowed to the circuit court from any order or judgment made or rendered under this act,” but this section can apply only when the appellant has an appealable interest. If the parents were living they might contest, by appeal, whether it was necessary to appoint a guardian for their minor child, for the reason that they are legally entitled to the custody of the child unless it has been determined by the court that they are unfit to have that custody. Being interested parties, they have a right to contest the action of the court in taking their child from their custody. On the other hand, no person has a legal right to be appointed guardian of a minor after it has been determined that the appointment is necessary or convenient, and so no person has such an interest as entitles him to appeal from an order of the county court naming a suitable person guardian. It is conceded in this proceeding that both appellant, B. R. McMahan, and appellee Mary A. Trautvetter, are suitable and proper persons to be appointed guardian of this child. On what theory is an appeal allowed from the county court to the circuit court? If such an appeal is allowed there is no review of the decision of the county court, but the county court’s decision is set aside by the appeal and held for naught. The trial in the circuit court is de novo. In determining who is the most, suitable and proper person to be the guardian of a child no questions of law are involved. The question is purely one of discretion, and whether that discretion will be properly exercised depends entirely upon the man who exercises the discretion and not upon the position which he holds. All rights are as securely protected when this discretion is to be exercised by the county court as they would be if the statute declared that it was to be exercised by the circuit court. To hold that any disappointed relative has an appealable interest in a case of this character is to destroy the very purpose of the act.