Opinion
No. 26929
Decided June 22, 1938.
Probate Court — Exclusive jurisdiction — Section 10501-53, General Code — Attorney fees for unsuccessful prosecution of application to remove guardian.
Under the provisions of Section 10501-53, General Code, the Court of Probate has exclusive jurisdiction as to the allowance of fees to an attorney for his services in the unsuccessful prosecution of an application for the removal of the guardian of an incompetent.
APPEAL from the Court of Appeals of Tuscarawas county.
The plaintiffs instituted this action in quantum meruit in the Court of Common Pleas for the recovery of fees for services rendered as attorneys for the defendant Wolfe, an incompetent. Wolfe's guardian was made a codefendant. The plaintiffs' petition reads as follows:
"The defendant Henry Wolfe has been adjudicated an incompetent person and L.M. Williams is the duly appointed and acting and qualified guardian of Henry Wolfe and these parties had such status on or about the twenty-third day of October, 1935.
"On or about the twenty-third day of October, 1935, the defendant Henry Wolfe employed the plaintiffs, who are attorneys at law regularly licensed by the state of Ohio, to represent him in an action for the removal of the defendant L.M. Williams as guardian on the grounds that he was no longer an incompetent person under the provisions of the statutes of Ohio, in such case made and provided. Said plaintiffs were employed by said defendant to prosecute whatever actions were necessary for the termination of such guardianship and to do all things necessary to bring about said act and your petitioners futher allege that they made an investigation of the competency of the said Henry Wolfe and from such investigation they were convinced and are still convinced that the said Henry Wolfe was and is a competent person and that there did not exist a reason for the retention of a guardian over the person and the estate of the defendant Henry Wolfe. Plaintiffs allege further that the estate of the said Henry Wolfe at said time amounted to something over thirteen thousand dollars ($13,000), and in good faith accepted at Canton, Ohio, the employment by Henry Wolfe as counsel for him.
"Your petitioners say further that the laws of the state of Ohio provide for adjudicated incompetent persons to apply for removal of guardians and that the retention of counsel is absolutely necessary in the prosecution of such actions.
"Your petitioners say further that they proceeded immediately to New Philadelphia and instituted proceedings to terminate such guardianship which was heard in the Probate Court of Tuscarawas county and that by order of the court the application for the removal of the guardian was denied and that thereupon an appeal was taken to the Court of Common Pleas of Tuscarawas county by these plaintiffs which appeal was heard upon the demurrer of the defendant L.M. Williams, guardian, and which demurrer was sustained by the Court of Common Pleas and that thereupon error was prosecuted to the Court of Appeals by these plaintiffs and that as a result thereof the Court of Common Pleas was reversed and the cause remanded to the Court of Common Pleas for further hearing and that thereupon the defendant, L.M. Williams, guardian, perfected on error proceedings to the Supreme Court of Ohio and that the Supreme Court of Ohio affirmed the decision of the Court of Appeals and remanded the case to the Court of Common Pleas for further hearing thereon. [ Wolfe v. Williams, Gdn., 132 Ohio St. 170, 5 N.E.2d 698.]
"Plaintiffs say further that almost concurrently with the appeal to the Court of Common Pleas from the Probate Court, the defendant L.M. Williams, guardian, notified the defendant, Henry Wolfe, of his intention to buy a farm for the said Henry Wolfe notwithstanding the fact that the cause was then and there in the Court of Common Pleas on appeal and that the said Henry Wolfe employed these plaintiffs to enjoin and restrain the defendant L.M. Williams, guardian, from proceeding to the purchase of said farm. Plaintiffs thereupon instituted an action in the Court of Common Pleas of Tuscarawas county to enjoin and restrain the purchase of said farm. Plaintiffs say further that hearing was had thereon and by agreement of counsel the purchase of the farm was held in abeyance pending the outcome of the proceedings for the removal of the guardian.
"Plaintiffs say further that sometime in December, 1936, or approximately fourteen months after the services of these plaintiffs had begun and while the action was pending in the Supreme Court of Ohio the defendant Henry Wolfe notified these plaintiffs to discontinue their services and that their services would no longer be required and that he had abandoned his desire to have the guardianship removed.
"Plaintiffs say further that one of the questions involved in the conduct of the case of Henry Wolfe was that of the constitutionality of one of the laws of the state of Ohio which plaintiffs herein were successful in having declared unconstitutional in the Court of Appeals and in the Supreme Court of Ohio and which law involved the right of appeal of the defendant Henry Wolfe from the Probate Court to the Court of Common Pleas.
"Plaintiffs say further that the employment of plaintiffs embraced a period of approximately fourteen months and involved approximately fifteen trips from Canton to New Philadelphia at their own expense; two long distance telephone calls to Cleveland, three long distance calls to Columbus and one telegram, six long distance telephone calls to New Philadelphia; the transportation of three witnesses on two occasions from Canton to New Philadelphia including the purchase of meals for the witnesses in New Philadelphia and also the meals of Henry Wolfe; the taking of depositions in Massillon at the state hospital and of Dr. O'Brien at Canton, Ohio; approximately eighty office calls by the defendant Henry Wolfe for consultation with these plaintiffs; three trips by the plaintiffs to the temporary residence of Henry Wolfe approximately ten miles east of Canton; the furnishing of approximately $3.50 to Henry Wolfe in cash; the employment of Dr. O'Brien of Canton, Ohio, for consultation and expert witness fees in New Philadelphia, Ohio, as well as the depositions of Dr. O'Brien; it embraced approximately eight days in court on hearings; it entailed approximately twelve days in the preparation of briefs; it entailed approximately six full days in preparation for various other hearings and that the reasonable value of the services and expenses for the said Henry Wolfe in connection with the employment of these plaintiffs for him is twenty-five hundred dollars.
"Plaintiffs allege further that there is sufficient property of the ward in the hands of the defendant L.M. Williams, guardian, to pay the amount due plaintiffs.
"Wherefore plaintiffs pray judgment against the defendants in the sum of twenty-five hundred dollars ($2,500) and the costs of this action."
To the petition each defendant filed a demurrer. These were sustained, and judgment was entered for the defendants.
Upon appeal on questions of law the Court of Appeals affirmed the judgment of the trial court.
The case is in this court upon the allowance of a motion to certify.
Mr. Adolph Unger and Mr. Norman E. Clark, for appellants.
Messrs. Wilkin, Fisher Limbach, for appellees.
In their brief the plaintiffs urge that their claim is one for necessaries furnished the incompetent. The defendants do not dispute this.
In ruling upon the demurrer of the guardian the trial court held that it had no jurisdiction of the subject of the action. Was this correct?
Section 8 of Article IV of the Constitution of Ohio contains the following provisions:
"The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county, or counties, as may be provided by law."
Thus it is apparent that although the Court of Probate is a creature of the Constitution, its jurisdiction is both constitutional and statutory. Hence the defendants contend that the answer to the instant question is found in Section 10501-53, General Code, which reads in part as follows:
"Except as hereinafter provided, the Probate Court shall have jurisdiction: * * *
"4. To appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts; * * *
"13. To direct and control the conduct of fiduciaries and settle their accounts.
"Such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law.
"The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute."
The defendants rely upon Section 10507-16, General Code, which provides in part as follows:
"When a guardian is appointed to have the custody, maintenance and (if the ward be a minor) to have charge of the education of a ward, his duties are: * * *
"4. To obey all the orders and judgments of the court touching the guardianship.
"Provided, however, that no part of the ward's estate shall be used for the support, maintenance or education of a ward unless ordered and approved by the court."
The plaintiffs rely upon the following provisions of Section 11215, General Code, relating to the statutory jurisdiction of the Court of Common Pleas:
"The Court of Common Pleas shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace; and appellate jurisdiction from the decision of county commissioners, justices of the peace, and other inferior courts in the proper county, in all civil cases, subject to the regulations provided by law."
The difficulty with this contention of the plaintiffs is that Section 11215 is an old and general statute while Section 10501-53 is recent and special. Therefore under the canons of statutory construction the latter must take precedence over the former. It is difficult to escape the effect of specific provisions that "such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law" and that "the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute." The application for the removal of the guardian was properly before the Probate Court. The request was denied. Since the court concededly was charged with the responsibility of continued control over the guardian, the ward and his estate, and since any fees allowed the ward's attorneys must come from the estate, this matter therefore would seem to be peculiarly within the province of that tribunal. Furthermore that is the court in which a substantial part of the attorneys' services were performed.
It is the view of this court that the recent, special statute relating to the jurisdiction of the Probate Court must be accepted as decisive of the question here presented. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, MYERS and GORMAN, JJ., concur.