GAUSS v. VERHOEFF, 28 Colo. App. 122 (1970)

(470 P.2d 879)

Elvia V. Gauss, John A. Verhoeff, Jr., Patricia Ann Catchings, Gerald W. Verhoeff, William Verhoeff, Marguerite Strode v. J. A. Verhoeff, also known as John A. Verhoeff

No. 70-061 (Supreme Court No. 23029)Colorado Court of Appeals.
Decided March 17, 1970.

From an order dismissing a petition for an adjudication of mental incompetency, petitioners appealed.

Writ of Error Dismissed

1. APPEAL AND ERROR — Mental Incompetency — Death of Respondent — Abatement of Proceedings. Where the respondent in a mental incompetency proceeding dies subsequent to the issuance of a writ of error, the proceedings abate and the writ is dismissed with each party to pay his own costs.

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Error to the District Court of Kit Carson County, Honorable John E. Gallagher, Judge.

L. K. Engeman, Lewis E. Eagan, for plaintiffs in error.

Hoyman Starlin, John Hoyman, James I. Shepard, for defendant in error.

Division I.

Per Curiam.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

[1] This is an appeal from an order of the trial court dismissing a petition for an adjudication of mental incompetency and discharging the respondent. After issue of the Writ of Error the respondent died. Under this circumstance the proceedings abate. 44 C.J.S. Insane Persons § 33 (1945) In re Fleming, 228 N.Y.S. 544, 223 App. Div. 849. See Downer v. People ex rel. Maxwell, 60 Colo. 497, 158 P. 302. Therefore the writ of error is dismissed, the parties to pay their own costs.

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