Montgomery v. Gilbert
Montgomery v. Gilbert
Opinion of the Court
One ground of the motion to dismiss was the alleged absence, in both the application and the certificate, of the allegation specified in Code § 49-604 (c), as amended by Ga. L. 1964, pp. 499, 660, “that the person is mentally incompetent, resulting from mental illness or other causes, and is incapable of managing his estate.” The application alleges that Mrs. Montgomery “is a person mentally ill to the extent that she is incapable of managing his [her] estate.” At the bottom of the third page of the application form there appears the following printed statement: “ 'Mentally ill,’ for the purpose of this application, shall also include persons who are mentally retarded and mentally incompetent.” (Emphasis supplied.) A substantial compliance with any requirement of the Code is sufficient unless the enactment expressly provides to the contrary. Code § 102-102 (6). Although the present proceeding is a summary statutory one which must be strictly construed (Morton v. Sims, 64 Ga. 298, 301 (1)), to require that such an application allege exactly verbatim and in one place the language of the statute would defeat the obvious intent of the legislature by a too strict adherence to the letter of the statute. “The true genius of the law, whatever may be thought to the contrary, is to quibble as little as possible on words, and go directly to the substance. It is true, that for the sake of
Another ground of attack upon the proceedings was that neither the application nor the certificate alleged that Mrs. Montgomery was “in need of hospitalization,” which allegation, it is contended is required by Code § 49-604 (c), as amended, and Code Ann. § 88-506 (a) (Ga. L. 1964, pp. 499, 534).
Code Ann. § 49-604 (c) provides, in part, as follows: “In the case of a person for whom another person desires the appointment of a guardian but not an order of hospitalization, upon application pursuant to subsection 88-606 (a) and upon allegation that the person is mentally incompetent,” etc. (Emphasis supplied.) Subsection (a) of Code Ann. § 49-604 pertains to the procedure for filing written application for hospitalization, and subsection (b) provides for the appointment of a guardian for a person who has already been involuntarily hospitalized in a psychiatric hospital. The present application is clearly brought under provisions of subsection (c), whereunder no order of hospitalization is sought. The fact that Code Ann. § 88-506 (a), pursuant to which the application of Code Ann. § 49-604 (c) is to be filed, requires the statement that the person is in need of hospitalization does not require a similar statement in a proceeding under Code Ann. § 49-604 (c). Code Ann. § 88-506 deals with the procedure for hospitalization under court order, whereas in Code Ann. § 49-604 (c), the ordinary is prohibited from ordering hospitalization, the order sought being for the
The third basis of the motion to dismiss is that those who acknowledged notice of the hearing were not those required by the law. Code Ann. § 49-604 (c) as amended provides that, after the application is filed pursuant to Code Ann. § 88-506 (a), the provisions of section 88-506 shall govern the procedure for appointment of a guardian, etc. Code Ann. § 88-506 (b) provides as follows: “Ten days written notice of the examination hearing on the application shall be given by the court of ordinary to the alleged patient or his attorney or guardian ad litem and to the three nearest adult relatives of such person residing within the State, one of such adult relatives being the spouse of the patient, if any, if such spouse resides in the State. Such notice may be waived in writing by such persons but may be waived in writing on behalf of the alleged patient only by his attorney or guardian ad litem.” Appellant cites the case of Morton v. Sims, 64 Ga. 298, 302, supra, for the proposition that the petitioners cannot be considered as comprising the nearest adult relatives to whom notice can be given. The application shows the sole applicant, or petitioner, to be George M. Gilbert, Jr., with Mrs. Zellna S. Gilbert and Frank G. Elder being listed merely as nearest adult relatives, along with applicant. The Supreme Court held, relative to this situation, as follows (p. 302): “The scheme of the statute is to serve notice upon three, if that many are here, and if there be less than that many, upon two or one, as the case may be. If none is here,
The record does not show that there was entered on the application any order for the appointment of a commission or of a permanent guardian, the only order having been entered thereon being the one merely authorizing the examination, which the record does not show was ever conducted. Accordingly, the court did not err in its judgment overruling the demurrers to the application and the motion to dismiss the application and to vacate all orders entered thereon.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.