#### State ex rel. Deleglise, Appellant, vs. Parsons, County Judge, Respondent.

*April 13*—

April *30, 1907.*

*Guardian and ward: Special guardians: Constitutional law: Du*e *process of law.*

1.. Sec. 3995c, Stats. (Supp. 1906; Laws of 1905, ch. 89), does not authorize the appointment of a speciaí guardian after the appointment and qualification of a guardian, even though an appeal has been. taken from the order of appointment and a stay of proceedings had.

[2. Whether sec. 3995c, Stats. (Supp. 1906; Laws of 1905, ch. 89), which provides for appointment of special guardians without notice, is valid, not determined.]

Appeal from a judgment of tbe circuit court for Langlade county: JohN GoodlaNd, Circuit Judge.

*Reversed.*

Tbis is a *certiorari*proceeding brought to review the determination of the county court of Langlade county in appointing a special guardian for appellant, *Mary Deleglise.*The appeal here is from the judgment of the circuit court quashing the writ. It appears from the record that application was made on notice to the county court of Langlade county for the appointment of a guardian over the person and estate of the plaintiff, *Mary Deleglisej*that a hearing was had upon such application, and on the 30th day of December, 1905, one Edward Cleary appointed guardian, and letters of guardianship issued to him and he qualified as such guardian; that an appeal was duly taken to the circuit court for Langlade county from such order appointing him guardian and a stay of proceedings duly obtained; that after said appeal and stay, upon application made *ex parte*and without notice to the plaintiff, *Mary*Deleglise, the county judge of Langlade county made an order appointing said Edward Oleary special guardian, assuming to act under the provisions of ch. 89, Laws of 1905.

*607For the appellant there was a brief by *Goodrick & Goodrick,*and oral argument by *A. B. Goodrick.*

To the point that ch. 89, Laws of 1905, contravenes sec. 1, art. XIV, Const, of U. S., in that it does not provide for “due process of law,” they cited *Bertholf v. O’Reilly,*74 1ST. Y. 509, 519 ; *Stuart v. Palmer,*74'N. Y. 183; 8 Cye. 1083, 1094; 16 Am. & Eng. Ency. of Law (1st ed.) 807; Cooley, Const. Lim. (4th ed.) 438; *Hovey v. Blliott,*167 TJ. S. 409, 414; *In re Boyettj,*136 1ST. 0. 415, 1 Am. & Eng. Anno. Cas. 729; *Dietz v. Neeñah,*91 Wis. 422, 429; *Schütz v. Roenitz,*86 Wis. 31, 40; *In/re, Bassett,*68 Mich. 348, 36 1ST. W. 97; *-In re Myers,*73 Mich. 401, 41 X. W. 334; *Campbell v. Campbell,*63 Ill. 462; *Chase v. Hathaway,*14 Mass. 222.

For the respondent there was a brief by *T. W. Hogan*and *Poster & Morson,*and oral argument by *Mr. Hogan.*

Kerwin, J.

The question for determination upon this appeal is the authority to appoint a special guardian for the plaintiff, *Mary Deleglise,*under sec. 3995c, Stats. (Supp. 1906; Laws of 1905, ch. 89). This law is attacked as unconstitutional by counsel for appellant, and a very able and interesting argument is made upon the constitutionality of the law, which provides for the appointment of a special guardian without notice; but from the Anew Ave take of the case before us it is unnecessary to consider such question. Therefore we do not determine whether the law is constitutional or not. Sec. 3995c, Stats. (Supp. 1906; Laws of 1905, ch. 89) provides :

> “When there shall be delay in appointing a guardian of a minor, insane person or other person subject to guardianship, or in issuing letters of guardianship to such guardian, occasioned by any contest concerning a guardian appointed in any will, or from any other cause, or Avhen it shall appear to the satisfaction of the court to be necessary, the county court may appoint a special guardian for such ward, to act until the matter causing the delay shall be disposed of or the ne*608cessity tberefor cease to exist. No appeal shall be allowed' from tbe appointment of such special guardian, and such special guardian may be appointed without notice. Such special guardian may be removed whenever the court may so-order.”

It seems very clear from the foregoing section that the purpose of the legislature in the enactment of this law was to provide for the appointment of a special guardian in case-of delay in the appointment of a guardian for a minor, insane person, or other person subject to guardianship, and for another class of eases where there is a contest concerning a guardian appointed in a will, or from other cause, or where it shall appear necessary. The case before us clearly falls-within the first provision of this statute, respecting delay in the appointment of a guardian. The provision for appointment of a special guardian in cases like the one before us manifestly relates to ancillary proceedings pending the delay in appointment of a guardian. All of the provisions of the statute fairly imply that the special guardian is one to be appointed pending delay in the appointment of a guardian,, and that after a guardian is appointed no pight exists to appoint a special guardian, and, if a special guardian be appointed before the appointment of a guardian, the rights of' the special guardian are terminated upon the appointment of the guardian. The statute by its terms shows this to be the-manifest intention of the legislature in providing that “when there shall be delay in appointing a guardian of a minor, insane person or other person subject to guardianship,” a special guardian may be appointed. Sec. 3995c, Stats. (Supp. 1906; Laws of 1905, ch. 89). Sec. 3995/ of the same act provides that the power of the special guardian “shall cease upon the issuing of letters of guardianship to the guardian of his ward.” We think it clear that the provisions in this-act for the appointment of a special guardian in a case like-the one before us have reference to ancillary proceedings-*609merely before the appointment of a guardian, and that tbe court bad no jurisdiction to appoint a special guardian of tbe plaintiff, *Mary Deleglise,*after tbe appointment and qualification of Edward Oleary as guardian. Statutes of this nature, against common right, and affecting in a measure tbe property rights and liberty of tbe party placed under guardianship, should not be extended beyond their plain meaning, and we think tbe language of this statute is clear that tbe jurisdiction of tbe court to appoint a special guardian in a case like tbe.one before us terminated with tbe appointment and qualification of tbe guardian, although an appeal bad been taken from tbe order of appointment and a stay of proceedings bad. *In re Guardianship of Welch,*108 Wis. 387, 84 N. W. 550; *Waterman v. Raymond,*5 Wis. 185.

The plaintiff was entitled to her appeal from tbe order appointing Edward Oleary guardian and stay of proceedings, so that it might be determined in tbe appellate court whether tbe.order in tbe county court was wrong. She was entitled, pending tbe appeal, to have tbe status preserved and to protection from any interference with her liberty or property rights until'final determination of tbe question involved. Tbe law affords her this right on appeal from tbe appointment of a guardian, and to allow tbe appointment of a special guardian pending tbe delay would be to allow to be accomplished indirectly what could not be accomplished directly, and thus defeat tbe protection afforded tbe appellant by appeal and stay of proceedings. We are satisfied that the county court bad no jurisdiction to appoint a special guardian after appointment and qualification of tbe guardian. Therefore all proceedings respecting tbe appointment of Edward Cleary special guardian are void and should be set aside and vacated. Respondent relies upon *Bumpus v. French,*179 Mass. 131, 60 N. E. 414; but an examination of this case discloses that the appointment of a temporary guardian was made before appointment of a permanent guardian. Hence tbe case in *610no way conflicts with the conclusions at which we have arrived.

*By the Court.*— The judgment of the court below quashing the writ of *certiorari*is reversed, and the cause remanded with instructions to set aside and vacate the order and all proceedings respecting the appointment and qualification of Edward Oleary as special guardian of the appellant, *Mary Deleglise.*