Section 854 applies to a person who has been adjudged an incompetent. In re Revard's Guardianship, 134 Okla. 202, 272 P. 480, 482. The petition for restoration to capacity, filed June 14, 1924, was subscribed and sworn to by Nancy before a notary public.
"Although one who has been adjudged incompetent of managing his own affairs can ordinarily act through his guardian only, yet, where the very object of an action is to determine the legality of the judgment adjudging him an incompetent, the same may be prosecuted by him in his own proper person." This section applies to adjudicated incompetents, as noted in In re Revard's Guardianship, 134 Okla. 202, 272 P. 480 (1928). Subsequently, the 10th Circuit Court of Appeals held in Bradburn v. McIntosh, 159 F.2d 925 (1947), that the statutory right of a person to institute and prosecute a proceeding for restoration must embrace the right to employ counsel.
The Court below erred in sustaining a motion for a bill of particulars, because the matter sought in the bill of particulars was peculiarly within the knowledge of the defendant below, R. Hart Chinn, who was mayor of the city of Biloxi at the time involved, and the suit being based upon public records including the official audit for the period involved, all of which were fully available to said defendant. 41 Am. Jur., Sec. 272 p. 480. III.
It is also asserted that the cause was not set for trial after being at issue as required by section 395, O. S. 1931, 12 Okla. St. Ann. § 666. In view of the holding of this court in Re Revard's Guardianship, 134 Okla. 202, 272 P. 480, we find no error in this respect. In the next proposition the sufficiency of the appeal bond is presented.
Apparently, however, Mellott's greatest interest in the case is because of the fact that he made obligations for her in the purchase of a home and executed notes held by witness Stewart and that if petitioner is restored to competency he argued he would be personally liable on same. His counsel argues that it would be inequitable to release the ward because the guardian might have a personal liability for debt incurred by him, and that for this reason, if for no other, she should not be restored to her competency. Such a situation arose in a former case decided by this court in Re Guardianship of Revard. Revard v. Givens, 134 Okla. 202, 272 P. 480. This appeal was from the district court of Osage county, affected an Osage Indian, and the appeal was from the decision of the same trial judge who tried the case at bar.
"Mark S. Revard, Petitioner in Error, v. Dora B. Givens, Defendant and Cross-Petitioner in Error. No. 18730." — and held ( 134 Okla. 202, 272 P. 480) "From an examination of the record in this cause we are of the opinion that part of the judgment of the trial court postponing and suspending judgment, restoring the petitioner to capacity until such time as the obligations of the guardians of the ward are satisfied, was without the issues in the case and not within the power of the court to so order.