Cox v. Osage County
| Decision Date | 09 March 1891 |
| Citation | 15 S.W. 763,103 Mo. 385 |
| Parties | Cox v. Osage County, Plaintiff in Error |
| Court | Missouri Supreme Court |
Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Affirmed.
Silver & Brown for plaintiff in error.
(1) Fees or costs are not allowed to public officers unless expressly given by law. Williams v. Chariton Co., 85 Mo. 645; Shed v. Railroad, 67 Mo. 687; Gammon v LaFayette Co., 76 Mo. 675. (2) Plaintiff cannot recover under Revised Statutes, 1879, sections 5829-5830, for these sections contemplate and refer to the preliminary confinement of the lunatic, and which precedes the inquiry by a jury. Besides the sheriff is not among the officers enumerated in section 5829. (3) Plaintiff cannot recover under Revised Statutes, 1879, section 5782, because only "the costs of the proceedings" shall be paid by the county if the estate of the lunatic be insufficient. The statute evidently refers to the costs of the trial already had -- not to the future expenses of confining the lunatic. Statutes as to costs are to be strictly construed. Authorities, supra. (4) The evidence in the case (that of Judge Miller) shows that Molliter was really a non-resident of Osage county.
Ryors & Vosholl and J. W. Zevely for defendant in error.
(1) The statutes confer power upon the probate court solely to determine the insanity of anyone. Const., sec. 34, art. 6; R S. 1879, sec. 5787. (2) This jurisdiction is of the person at the time the power is exercised, and in nowise is dependent upon the residence of the person charged with being insane. R. S. 1879, sec. 5787. (3) It is not only within the power but it is the duty of the probate court to order the confinement and restraint of a person dangerously and violently insane. R. S. 1879, secs. 5828, 5829. (4) The expenses attending such confinement, both before and after the inquiry as to his lunacy, are clearly provided for by the statute. R. S. 1879, sec. 5830. (5) The expenses of confinement referred to in section 5830 are not fees, and the decisions referred to by counsel on the other side, it is submitted, are not applicable to this case.
On September 16, 1886, one John Molliter, by a verdict of a jury in the probate court of Osage county, was found to be of unsound mind and incapable of managing his own affairs; also, to be so disordered in his mind as to endanger his own person and the property of others. On the return of the verdict the probate court appointed one Flora Elsner his guardian upon his giving bond as required by law, and ordered that Molliter be placed in the custody of the sheriff of Osage county, "who will take further steps and confine him in some suitable place so as to protect the safety of the community until further orders from the court, or until the county court of Osage county can make suitable provisions for his safekeeping, and said sheriff will make due report to this court of his necessary expenditure of money in his behalf."
Subsequently, on July 18, 1887, the sheriff presented his report to the probate court, showing the expenses of confining Molliter under the previous order of the court. The court thereupon made its order reciting that Molliter was entirely without means, and, there being no one whose duty it was by law to support him, the report of the sheriff was approved and the sum of $ 356 was allowed him for expenses attending Molliter's confinement. It was further ordered that a copy of this last order "be certified to the county court of Osage county for payment."
The order was presented to the county court, which refused to pay the claim. The matter was then appealed to the circuit court and a trial was had. On the trial in the circuit court plaintiff (the sheriff) offered in evidence the above-mentioned proceedings and orders of the probate court, to which objections were duly made, and, being overruled, exceptions were saved by defendant. The defendant introduced oral testimony for the purpose of showing that Molliter was at the time of the inquisition a non-resident of Osage county.
It is then agreed "that all objections to the form of the papers and records introduced in evidence are waived, and further that there is no objection as to the mode of procedure and the right of plaintiff to bring his case into the circuit court by appeal." The court found for the plaintiff, rendered judgment in his favor for $ 356. The defendant filed its motion for new trial, which being overruled, brings the case here by writ of error. The question to be decided is whether upon the foregoing facts the county court can be compelled to pay the claim.
I. By law the probate court in each county is vested with jurisdiction de lunatico inquirendo as to any person in such county charged by information in writing to be of unsound mind. R. S. 1879, sec. 5787. The exercise of such jurisdiction is not dependent upon the length of time the subject of such inquiry may have resided in the county prior to the inquiry; it is sufficient that at the time of the inquiry he was actually in the county. The law reads: "If information in writing be given to the probate court that any person in its county is an idiot, lunatic or person of unsound mind," etc. Sec. 5787, supra. The fact, that the lunatic in this case had only been in the county three or four months or weeks, as the case may have been, before the inquiry, was no reason that the probate court should not exercise jurisdiction in the case.
II. The jurisdiction to appoint guardians of such persons as may be found...
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