
    AS TO APPOINTMENT OF GUARDIANS.
    Circuit Court of Cuyahoga County.
    Henry Urban, Guardian, v. John Urban.
    Decided, January 21, 1907.
    
      Probate Court — Jurisdiction to Appoint Guardians.
    
    The probate court has no jurisdiction to find one an intemperate and appoint a guardian for'him under favor of Section 6317, Revised Statutes, where the application for the appointment of a guardian alleges imbecility and is made under favor of Section 6302, Revised Statutes.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is brought to reverse a judgment rendered in the court of common pleas on appeal from the probate court. The proceeding in the probate court was brought to vacate a prior order of that court appointing a guardian for’ one John Urban, and the judgment here sought to be reversed vacates that order of appointment.

The chief ground alleged for such vacation is that the original order was made without jurisdiction. The bill of exceptions here shows that an application was made to the probate court for the appointment of a “ guardian of the person and estate of John Urban, an intemperate, and who resides at number - Rhodes avenue, Cleveland, Cuyahoga county, Ohio.”

The facts on which this application is based, are briefly, as follows:

“Said John Urban is an imbecile, wholly incapable of looking after himself and his property, and unfit to.”

The word “intemperate” near the beginning of the foregoing quotation, is "substituted for the word “imbecile” which' had been first written there and then crossed out. The order of appointment of the guardian was based upon the finding that John Urban was in fact an intemperate.

Upon the application for an appointment of a guardian for an imbecile, as provided by Section 6302 of the Revised Statutes, three days notice is required to be given to the next of kin of the alleged imbecile. The procedure upon an application for the appointment of a guardian for an intemperate is provided for by Section 6317 of the Revised Statutes, which requires five to ten days notice to the intemperate himself.

It is clear that the application and notice were intended to conform with the requirements of the former section and that the requirements of the latter section were not complied with, except that an attempt was made to amend the application by interlineation, as a basis for the court’s finding that the person complained- of was an intemperate instead of a imbecile.

The journal entry in the probate court recites that - John Urban was in court, and hence it is claimed that the five or ten days previous notice to him was waived by hi's appearance. If there be any uncertainty about the equivalence of the words “in court” with the expression “entry of appearance” the plaintiff in error here complains, show that the court erred in excluding the evidence tending to show that the journal entry was intended to convey this idea, and in refusing to entertain plaintiff in error’s application to have the journal amended, nunc pro tunc, to correct this uncertainty, if any.

Upon the other side it is urged that it is quite immaterial whether or not John Urban entered his appearance in this proceeding after the attempt was made to amend it from a proceeding for the appointment of a guardian for an imbecile into a proceeding for the appointment of a guardian for an intemperate, because the facts as alleged in the' above quotation from the original application after its amendment, are such as to preclude the court from finding the application to be sufficient, under Section 6317.

The statute provides for the appointment of a guardian when the person complained of "is incapable of taking proper care of himself or herself,, or his or her property, by reason of intemperance or habitual drunkenness.” The application alleged that the person complained of was "an imbecile, wholly incapable of looking after himself and his property, and unfit to.”

This allegation may be, and no doubt is quite” sufficient as a basis for the appointment of a guardian for an imbecile, but it affords no basis, under the statute, for the appointment of a guardian for an intemperate.

It follows, that unless the court is authorized in the course of the hearing to allow the nature of the proceeding to be changed, and to make an order based not upon the allegations of the application, but on proof of some other and different facts, the appointment of the guardian in this case was without authority at law and void.

The ease of Rosebrough v. Ansley et al, 35 Ohio State, 107, seems to us to be in point, paragraph 1 of the syllabus reading as follows:

"A judgment for a sum greater than the amount due upon a cause of action as stated in the record is erroneous; and the previous consent- of the parties that such judgment might be rendered does not cure the error.”

And in Spoors v. Coen, 44 Ohio State, 497, the 4th paragraph of the syllabus is as follows:

"The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached. ’

The ease at bar is, of course, a direct attack upon the qriginal order of the probate court.

Upon the. facts and authorities above mentioned, we hold that the original order of the probate court was not improperly vacated, and that there is no error in this record, and the judgment of the court of' common pleas is affirmed.  