
    WIEGAND, etc. v. WIEGAND.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7754.
    Decided Feb. 6, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    643. INSANITY — 62. Alimony — 1223. . Vacation.
    Fact that insane person, in action for divorce and alimony, was represented by trustee, and that duly appointed guardian was not served, held sufficient grounds to require vacation of judgment.
    Error to Common Pleas.
    Judgment reversed.
    Copeland & Quintrell, Cleveland, for plaintiff in error.
    F. E. Bruml, Cleveland, for defendant in error.
    STATEMENT OF' FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and it is sought to reverse the ruling of the Common Pleas Court because of the ruling of Aug. 11, 1926, refusing to vacate a judgment for alimony, to which ruling the plaintiff in said court then and there excepted.
    It appears that, in December, 1925, the plaintiff, by her next friend, commenced suit for alimony against the defendant, and, personal service having been obtained on Dec. 14, 1925, the motion for temporary alimony was refused. On. Dec. 21, 1927, an answer and cross petition were filed by the defendant, and it was endorsed as showing service upon the plaintiff, an insane person, and by the method of delivering to her a copy thereof, and service'was also made on the Superintendent of the State Hospital in whose custody the plaintiff, as an insane person, was found to be.
    On July 16, 1926, an answer to defendant’s cross petition was filed by a trustee appointed by the court, and thereafter the case was heard, and submitted, and a decree was rendered for the defendant upon his cross petition for divorce, and the petition for alimony was dismissed.
    The ground of divorce was adultery. The custody of the children was awarded to the defendant, with permission of the plaintiff to visit them, and alimony was granted to neither party.
    Subsequently, the plaintiff filed a motion to vacate or modify the judgment, and the motion was overruled by the trial court, and it is to this ruling that exception was taken and error is assigned.
   SULLIVAN, PJ.

“Section 11249 is decisive of the question.

It will be observed, by the language of the statute, that the appointment of a trustee is only authorized in case there is no guardian, and it is conceded, in this case, that, at the time of the trial, the insane person, Mildred I. Wiegand, had a duly appointed guardian who was not a party to the suit, and whose first entrance into the litigation was by the motion, made after judgment, to vacate or modify the decree as to alimony, on the ground that, under the statute, the trustee was powerless to represent the insane person in court, excepting according to the terms of the statute that there was no guardian, duly appointed and qualified, acting for her.

There is no question but that, under Article 4, Section 6 of the Constitution of Ohio,, this court, in cases like the one at bar, has jurisdiction to consider the questions presented in this case. This was determined in the well known case of Wells v. Wells, 105 OS. 471.

It is our unanimous judgment that the motion to vacate the judgment, on the application of the guardian, should have been granted, and the refusal of the court so to do was prejudicial to the substantial rights of the plaintiff in error, under the requirements of the statute above quoted.

Holding these views, the judgment of the lower court is hereby reversed as to the alimony alone, and the cause, as to that question remanded to the Court of Common Pleas for further proceedings according to law.”

(Vickery and Levine, JJ., concur.)  