Dibble v. Dibble

¶1Jonathan Dibble was a minor; George Dibble was his guardian; and this was a proceeding by the minor to remove the guardian, and praying the appointment of one Alfred Wilson.

¶2*308The Court granted the prayer of the petitioner, removed George Dibble, and appointed Wilson in his stead.

¶3From this order of removal George Dibble appeals.

¶4The petition sets out that the minor is the owner of certain land, which is described; that owing to its situation it cannot increase in value; that he is anxious to sell, and invest the proceeds in wild lands; that he can sell for 30 dollars per acre; that George Dibble was appointed his guardian when he, the petitioner, was under the age of 14 years; that he is'now 16 years old; that his present guardian wishes to buy the land, but refuses to give over 27 dollars and 50 cents for it per acre, to which the petitioner objects, &c. He therefore prays to have his guardian removed and Wilson appointed. The petition is verified by the oath of the petitioner.

¶5The order is, that said petition being inspected by the Court, and due deliberation had, the prayer is granted, Dibble removed, and Wilson appointed in his stead. This is done, it appears, instanter upon petition filed, without appearance on the part of George Dibble, process issued for him, or evidence offered in the cause.

¶6These proceedings are clearly erroneous. The statute provides the mode and causes for the removal of a guardian.

¶7“ The court, by whom or by whose clerk any guardian has been or may be appointed, may at any time remove such guardian, he having five days’ notice thereof, for habitual drunkenness, neglect of his duties, incompeteney, fraudulent conduct, removal from the county, or any other cause which, in the opinion of such court, renders it for the interest of the ward that such guardian should be removed.” 2 R. S. p. 325, s. 11.

¶8Aside from any other cause, the failure to give the five days’ notice provided for by the act, is fatal to the order of removal.

¶9Nor does the right of a minor who is over 14 years old to choose his own guardian, help out the petition so *309that the Court could regard it as merely a selection by the minor. For on that point the statute is also explicit.

¶10“ If the minor is over the age of fourteen years, such minor shall have the right to select a guardian, and if the person so selected shall be a suitable person, such person shall be appointed; but if such minor shall fail to select a suitable person, an appointment shall be made without reference to the wishes of such minor; such selection may be proved to the satisfaction of the court or clerk making the appointment, without the personal attendance of such minor.

¶11“ When a guardian has been appointed for any minor under the age of fourteen, such guardian shall not be removed when such minor arrives at the age 'of fourteen, except for good cause shown.” 2 E. S. p. 322, ss. 2, 3.

¶12So it seems that a guardian appointed by the Court while the minor is under fourteen, is not necessarily removed at the instance of such minor when he attains that age. He will only be removed for good cause shown. This necessarily implies notice to the guardian to appear in the proceeding and controvert the suffix ciency or the truth of the causes shown. The five days’ notice under our statute is still essential. Any action of the Court removing the guardian without notice or appearance is a nullity. Smith v. Myers, 5 Blackf. 223(1).

¶13The order of removal is reversed. Cause remanded, &c.