
    In re GUARDIANSHIP OF Samuel SWAIN, and Annie Swain, Incompetents. Samuel SWAIN and Annie Swain, Appellants, v. W. A. EARDLEY, Appellee.
    No. I-53.
    District Court of Appeal of Florida. First District.
    June 13, 1967.
    Cecil C. Jackson, Pensacola, for appellants.
    Barne J. Morain, Pensacola, for appellee.
   JOHNSON, Judge.

This is an appeal from an order of the County Judge of Escambia County, Florida, denying appellants’ petition to vacate an order adjudging appellants incompetent and appointing a guardian.

The facts are, the appellants had been residents of the Escambia County Home for about three years. They are both at or near 80 years of age. A nephew, and apparently their nearest and only kindred, filed a petition to have them adjudged incompetent and a guardian appointed. This was on July 27, 1964. The County Judge issued proper notice directed to each of the appellants setting the date of the hearing for July 29, 1964 at 3:00 P.M. This notice was served on the appellants on July 29, 1964, but whether it was served before or after 3:00 P.M., the time scheduled for the hearing, or not, is not shown. There was no showing that the parties were violent or liable to do themselves or anyone else any harm, so as to require an immediate hearing, which, admittedly could be done by the County Judge under a showing of such circumstances. This does not appear to be the case here, and therefore we feel that the “reasonable notice” as required by Florida Statutes 394.22(4), F.S.A. was not given in this case.

The appellants’ petition to vacate does not deny that the report of the examining committee was correct, nor that the appellants were incompetent then nor allege that they are competent now. There is no showing made that the appellants have been damaged nor their property dissipated. In fact, it appears that the County Judge took the extra precaution of having all checks or drafts countersigned by “Alma Ward” (whom we think was the County Judge’s secretary or clerk).

We think due process was not afforded the appellants because of the lack of reasonable notice in advance of the hearing on the petition but because of the age and apparent infirmities of the appellants, this court will not attempt to set aside the adjudication of incompetency and appointment of guardian, but we do reverse the order appealed from with directions that the present County Judge issue a new and further notice to the appellants, giving them a reasonable time to arrange counsel and that further inquiry be made into the competency of said appellants, with directions to enter such further orders, after proper hearing, as to him may seem to be for the best interest of said alleged incompetents in accordance with chapter 194 of Florida Statutes including affirming the acts of the present guardian, if found to be proper.

Reversed and remanded with directions.

CARROLL, DONALD K., J., concurs.

RAWLS, C. J., dissents.

RAWLS, Chief Judge

(dissents).

The Swains petitioned the trial court to discharge the guardian and set aside the order adjudicating them incompetent. The record reveals that the county judge’s court never acquired jurisdiction over the persons of the Swains so the relief sought should have been granted.

The inquisition proceeding against an alleged incompetent is a proceeding in per-sonam which requires due notice and an opportunity to be heard. The prerequisites are set forth in Section 394.22, Florida Statutes, F.S.A., specifying that the alleged incompetent shall be given reasonable notice in writing of the time and place of the hearing and an opportunity to be represented by counsel. Compliance with this statute is essential to the obtaining of jurisdiction over the alleged incompetent. In the absence of proper process, voluntary appearance, and waiver, no jurisdiction is obtained to adjudge competency or incompetency; even actual knowledge that the proceedings have been brought creates no substitute for service of process.

The majority opinion seemingly held that due process was not afforded the Appellants because service of notice occurred on the same date as that scheduled for the hearing. I agree. Such a notice is contrary to the statute since it is not “reasonable notice” and does not afford the alleged incompetent an opportunity to be represented by counsel.

Here the Swains received notice on July 29, 1964 that the inquisition hearing would be (or had been) held at 3:00 p. m. on July 29, 1964. However, the report of the examining committee was not submitted until August 3, 1964, and hearing was subsequently held on August 10, 1964. The record reflects neither a notice to the Appellants for this inquisition hearing, a voluntary appearance of the Appellants nor a waiver of proper process. Since there was a failure of process and service as prescribed by law, the County Judge’s Court failed to acquire jurisdiction over the Appellants.

The record also discloses that certain legal proceedings have been instituted by the guardian for the protection of the Appellant’s property. There is no showing or claim of dissipation of any of their assets. Although the Appellant’s petition states that the inquisition proceedings are void, they have not prayed that the same be declared void ab initio but only that the guardian be discharged, orders relating to guardianship be vacated, and the order of incompetency be set aside.

I would reverse and remand with directions to grant the relief prayed, and any order entered thereon should, of course, be without prejudice to the institution of another appropriate proceeding.

I dissent. 
      
      . Rehrer v. Weeks, 106 So.2d 865 (Fla.App.2d, 1958).
     