The question involved in this case is: Did the district court of Custer county exceed its jurisdiction in appointing E.E. Fenton as guardian of the person and estate of Joseph Kesl, a mental incompetent?
The facts surrounding the guardianship appointment are well and fully stated in the majority opinion.
Notice of the hearing on the application for letters of guardianship was served upon Kesl, who was then admittedly mentally incompetent. Relator, who was in possession of Kesl's property as trustee, was not served with citation and knew nothing of the proceedings.
I am unable to agree that the citation served upon Joseph Kesl was sufficiently worded to impart notice to him of the guardianship hearing. The citation reads as follows: "You are hereby cited to be and appear before this court, at the court room thereof, in the court house, in the city of Miles City, County of Custer, State of Montana, on the 2nd day of March A.D. 1938, at the hour of 10:30 o'clock A.M. of said day, then and there to show cause, if any you have, why E.E. Fenton should not be appointed as the guardian of your person and estate, as prayed for in the petition of Agnes DeSell on file herein, a copy of which is herewith served upon you."
The American system of law has always guaranteed that personal and property rights of the American people shall not be interfered with without the opportunity of a full and complete hearing. Such rights and such guaranties must be preserved to the letter, lest we gradually fall into the identical circumstances as are people of other nations, where daily decrees and edicts confiscate property at will and imprison hapless people without reason. *Page 587
"Notice" is defined by statute. Section 8780, Revised Codes, reads: "Notice is: 1. Actual — which consists in express information of a fact. 2. Constructive — which is imputed by law." Section 8781 reads: "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself, in all cases in which, by prosecuting such inquiry, he might have learned such facts."
Applying the latter section to the notice in this case, I express my grave doubts whether the notice was "sufficient to put a prudent man upon inquiry," as to what was being attempted by the applicant for letters of guardianship. Therefore, if there is a doubt as to the sufficiency of a notice of hearing on any such matter, I believe that it is the duty of this court to see to it that a proper and sufficient notice is given. However, section 10412 requires a personal notice to be served upon the alleged incompetent. This section does not set out the mode of giving the notice. In such a case section 10362 must apply; this section is as follows: "When personal notice is required, and no mode of giving it is prescribed, it must be given by citation." What must be contained in a citation of this nature is set forth in section 10359: "Citation must be directed to the person to be cited, signed by the clerk and issued under the seal of the court, and must contain: 1. The title of the proceeding: 2. The style of the citation, which shall be `The State of Montana;' 3. A brief statement of the nature of the proceeding; 4. A direction that the person cited do appear at a time and place specified." This section has been held to apply to guardianship proceedings. (SeeState ex rel. Kelly v. District Court, 73 Mont. 84, 90,235 P. 751.) As this section demands, this citation should have stated the full purpose of the hearing.
The notice here is deficient for the reason that it does not state the full purpose of the guardianship hearing. Before a guardian may be appointed to care for the person and estate of an incompetent, there must be a hearing and determination that the person is in fact incompetent. (State ex rel. Carroll v.District Court, 50 Mont. 428, 432, 147 P. 612.) In the case *Page 588 just cited this court said: "Before a guardian can be appointed for an incompetent, the district court to which the application is addressed must, after a full hearing and examination, determine `that the person in question is incapable of taking care of himself and managing his property.'"
The citation served upon Joseph Kesl nowhere stated that there was to be a hearing to determine his "incompetency" which is necessary before a guardian can be appointed. The notice of hearing being deficient in this most important particular, it is my conviction that the entire proceedings in the court below are void and should be set aside.