
    APPEAL — GUARDIAN AND WARD.
    [Lorain (8th) Circuit Court,
    September 28, 1906.]
    Marvin, Winch and Henry, JJ.
    In re Guardianship of James E. Murray.
    1. Uncle of Ward may Appeal from Order Overruling Motion for Removal.
    An uncle of a minor child may make a motion for the removal of the guardian appointed for the child by the probate court, and may appeal from an order of this court overruling the motion.
    2. Guardian — Domicile of Parents.at Death Determines Jurisdiction of Court to Appoint Guardian of Child.
    Where the parents of a minor child have been living for some months with the child’s paternal grand parents and both die at this home, and the-child, with the grand parents’ consent, is taken by an aunt to another county, the jurisdiction to appoint a guardian is in the county where the parents resided at the time of their death, and not in the county to-which the child has been removed. (
    [Syllabus approved by the court.]
    Error to Lorain common pleas court.
    Clayton Chapman and G. A. Resek, for plaintiff in error.
    E. G. & H. C. Johnson and Lee Stroup, for defendants in error.
   MARVIN, J.

James Edward Murray is an infant, now about seven years of age. His father was Patrick J. Murray. His mother’s maiden name was. Moroney. Both are now dead.

At ope time these people lived in Athens county in this state. James Edward was born there. Mrs. Murray was threatened with or attacked with pulmonary disease on account of which they broke up their home at Athens in the fall of 1903, selling a part of their, goods and storing the remainder, and went to the state of Texas. After remaining in that state a few months, until probably March or April, 1904, Mrs. Murray not getting better, they returned to Ohio, stopping for a few weeks with Mrs. Murray’s sister at Toledo, then, in May, 1904, going to the home of Patrick’s parents in Wakeman, Huron county, Ohio. The goods which Patrick had left in Athens, he had shipped to him at Wakeman.

The entire family — that is, Patrick, his wife and the child, James Edward Murray — remained at the home of Patrick’s father in Wake-man until July 11, 1904, when Mrs. Murray died. Patrick and the child continued at the home and in the family of Patrick’s parents until he, Patrick, died there on November 24, 1904. Thereafter the child remained with his paternal grand parents until the twenty-eighth or "twenty-ninth day of the same month, when, with the approval and consent of the grand parents — at least with such approval and consent given by the grandmother and without objection on the part of the grandfather — said infant was brought from Wakeman by Katherine loveland, a sister of his deceased father, to her home in Lorain county.

On December 9, 1904, this aunt made application to the probate «court of said last-named county for appointment as guardian of said infant; said application was granted and she was appointed by said ■court as such guardian on said last-named date.

Said infant was not the owner of any property; the only duty imposed upon the guardian by such appointment was the care and custody «of his person.

On January 12, .1905, J. J. Moroney, a brother of the infant’s deceased mother, made a motion in said probate court to hate said guardian removed on the ground that said infant | was not a resident ■of Lorain county at the time of such appointment, and that, therefore, "the court was without jurisdiction to make the appointment.

Upon hearing the court overruled said motion whereupon said Moroney appealed to the court of common pleas. Upon trial in said last-named court said motion was sustained and said guardian was removed, the court holding that said infant was not, at the time of the appointment, a resident of said Lorain county.

By proper proceedings the ease is in this court on error to the order <of the court of common pleas.

Some question is made by the defendant in error that said Moroney is entitled to no standing in court. This does not seem to be well taken; he is an uncle of the infant, and ought to be interested in his welfare.

If this were a civil action, perhaps the way for him to have proceeded would have been to make the motion in the name of the infant, the uncle appearing as his next friend but it would seem that if the court was without jurisdiction to make the appointment, and attention was called to such want of jurisdiction by motion of one acting in good faith and having the interest, which an uncle might properly have in the welfare of the infant, the motion should be heard by the court, and if judgment should be against the party* filing the motion, taxing the costs against him, his interest in the casé would be sufficient to entitle iiim to appeal. Revised Statutes 6407 (Lan. 9983), provides that,

“Appeals may be taken to the court of common pleas from * * * an order removing or refusing to remove an executor, administrator, guardian, assignee, trustee or other officer appointed by the probate court. ’ ’

In the case, Johnson, In re, 87 Iowa 130 [54 N. W. Rep. 69], one Sturges filed his petition to be appointed guardian of a minor daughter born to him, but who had by legal adoption become the daughter of Mr. and Mrs. Johnson, both of whom had died. One D. W. Diggs filed a remonstrance to the malting of the appointment, setting up that he was by will of the adopting father, Johnson, made testamentary guardian of the person and property of the minor; that said will had been duly probated, and that he was acting as guardian of the child and then had her at his home.

A motion was made to strike the remonstrance from the files, this motion was sustained, and said Sturges was appointed; from this order Diggs appealed; Sturges moved to dismiss the appeal, and the court says in reference to said last-named motion:

“Appellee moves to dismiss the appeal upon the grounds that appellant, Diggs, is not a party to the proceeding; is not interested therein; that no judgment has been entered against him, that affects any substantial right of his, in such manner as to entitle him to appeal. It requires no citations to show that in the appointment of guardians the controlling consideration is the welfare of the ward. It is a special proceeding to make an appointment, to which no person has a private right.”

And the court held that Diggs had a right to be heard and overruled the motion to dismiss the appeal.

Certainly the proceeding to remove a guardian is equally a special proceeding with that of making the appointment. This proceeding was instituted by a near relative of the infant. It challenged, the jurisdiction of the court in. making the appointment, and it was proper that this motion should be heard and determined by that court, and it seems olear that- the party defeated was entitled to appear to the common pleas court.

The question then remains whether the court erred in holding that-said infant was not a resident of Lorain county at the time the appointment was made, as the word “resident” is used in Rev. Stat. 6254 (Lan. 9795).

After a careful examination of the question, the conclusion is reached, that there was no error in the judgment of the court of common pleas.

The carefully prepared opinion of Judge Washburn in this ease, Murray, In re, 16 Dec. 612, expresses our views of the law in the case, and is so exhaustive as to render it unnecessary to discuss to any considerable extent tbe questions there discussed.

This conclusion, on the part of two members of the court, is at variance with their views when the consideration of this case was first taken up.

We have the feeling expressed by the judge of the common pleas, that it is unfortunate that this guardian should, have to be removed,, but the law seems to require it.

And since as both this court and the court of common pleas hold that the residence of the child is in Huron county the probate court of that county can and doubtless will, upon proper application being made, appoint a suitable guardian for the child, whether- it be the one appointed here or some other person; but from the evidence in the-case it seems altogether probable that the probate court of Huron county will appoint, on proper application, the same guardian that was appointed in this county.

The order of the common pleas is affirmed.

Winch and Henry, JJ., concur. 
      
      Affirming Murray, In re, 16 Dec. 612.
     