Baker v. Estate of Smith

• Decision Date: 20 May 1929
• Citation: 18 S.W.2d 147,223 Mo.App. 1234,226 Mo.App. 510
• Parties: MARY B. BAKER, APPELLANT, v. ESTATE OF MARTHA B. SMITH, RESPONDENT
• Court: Kansas Court of Appeals

18 S.W.2d 147

223 Mo.App. 1234, 226 Mo.App. 510

MARY B. BAKER, APPELLANT, v. ESTATE OF MARTHA B. SMITH, RESPONDENT

Court of Appeals of Missouri, Kansas City

May 20, 1929

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

German Hull & German and Shultz & Owen for appellant.

Groves Watkins & Wanger for respondent.

BARNETT, C. Lee, C., concurs. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is an appeal from an order of the circuit court of Buchanan county, Missouri, whereby the trial court sustained a motion to dismiss the appellant's appeal from an order of the probate court of that county. The order of the probate court overruled appellant's motion to dismiss the proceedings in the matter of Martha B. Smith, a person of unsound mind.

Clark H. Smith and Martha B. Baker were married in Los Angeles, California on November 1, 1899. A few months after the marriage they established their home in Kansas City, Missouri. In 1917, Mrs. Smith was stricken with a malady which resulted in the loss of her reason. She was placed by her husband in various sanitariums and finally in 1920, she was placed in State Asylum No. 2, for the insane in St. Joseph, Missouri, where she has ever since been kept as a patient. During the time that Mrs. Smith has been a patient in the asylum at St. Joseph, Clark H. Smith has maintained his residence in Kansas City, Missouri. On August 13, 1923, the husband filed in the probate court of Buchanan county a verified information in which it was alleged that Martha B. Smith is a resident of Buchanan county, is possessed of property, and is a person of unsound mind and incapable of managing her own affairs. On the day that the information was filed the probate court made an order that notice issue to Martha B. Smith as required by law, that the cause be taken up for hearing on the 18th day of August, 1923, and that a jury be summoned to hear the cause. The notice was issued and the sheriff's return recited that it was served on the 13th day of August, 1923, by delivering a true copy to Martha B. Smith and by delivering a true copy to Dr. Thompson, superintendent of State Hospital No. 2. On the 16th day of August, 1923, the clerk of probate issued a jury summons, and the sheriff's return thereon appears as follows:

"In obedience to this command, I have executed this venire facias by summoning the following named persons as jurors for the within mentioned trial, to-wit:

"1. Wm. J. Dolan, 2. Chas. Lodholz, Fred Sanborn, 3. Ben Grimes, 4. R. H. Story, 5. Sam Hess, 6. Joe Spear, 7. Chas. Levi, 8. P. M. Austin, 9. Joe Wolff, 10. C. B. Griffith, J. J. Hanley, 11. O. L. Tarvin, 12. P. H. Oatman, J. H. Diddy, Avery Karns, W. A. Edson. Fee, $ .

"W. H. KUEKER,

"Sheriff of Buchanan County, Mo.

"By H. H. DARBELL, Deputy."

A pencil line had been run through the names of Fred Sanborn, J. J. Hanley and J. A. Kabka on the sheriff's return at the time of the trial in the circuit court, and numerals appeared before twelve names.

On August 18, 1923, the probate court again made an order that a jury summons issue to the sheriff of Buchanan county, Missouri, for eighteen jurors, and on that day the court entered of record an order which is as follows:

"Now here comes the sheriff of Buchanan county, Missouri, and returns notice to Martha B. Smith, showing proper service.

Now here it is ordered by the court that Homer King be and is hereby appointed counsel for said Martha B. Smith during the hearing on the information as to her alleged insanity.

"Now here the matter of the inquiry as to the alleged insanity of Martha B. Smith coming on to be heard, comes now the informant in person and Homer King appearing as (page 133) counsel for Martha B. Smith and comes also a jury duly summoned according to law, to-wit: William J. Dolan, Charles Lodholz, Ben Grimes, R. H. Story, Sam Hess, Joe Spear, Charles Levi, P. M. Austin, Joe Wolff, C. B. Griffith, O. L. Tarvin, and P. H. Oatman, twelve good and lawful men, who are duly sworn to try said cause, and the matter being submitted and the jury having heard all of the evidence touching the condition of mind of the said Martha B. Smith, retired to consider their verdict and, after due deliberation, returned into the court the following verdict: We, the jury in the above entitled cause, find that Martha B. Smith is a person of unsound mind and incapable of managing her own affairs.

"(Signed) JOSEPH SPEAR, Foreman."

"It is therefore adjudged by the court that Martha B. Smith is a person of unsound mind and incapable of managing her own affairs, and it is ordered and adjudged that Clark H. Smith be and is hereby appointed guardian of the said Martha B. Smith, insane, subject to giving bond unto the State of Missouri, in the sum of $ 6000, conditioned as required by law."

Therefore, Clark H. Smith qualified, filed an inventory, and made annual settlements. In 1927, the court made an order by which the husband was removed as guardian on the ground that he was a nonresident of the State of Missouri and had been divorced from his ward. The court then appointed one John J. Downey of St. Joseph, Missouri, as the husband's successor, who in due time qualified and who is now the acting guardian of Martha B. Smith.

Plaintiff filed a motion in the probate court of Buchanan county which is as follows:

"Comes now Mary B. Baker in person as the sister of said Martha B. Smith, and as her guardian and curatrix under appointment of the probate court of Jackson county, Missouri, sitting at Kansas City, and alleges that all of the proceedings herein are void and of no effect because this court had no jurisdiction to inquire into the sanity of said Martha B. Smith, and had no jurisdiction of her person or estate and no jurisdiction to appoint a guardian herein.

"Wherefore said Mary B. Baker, prays the court to dismiss this proceeding and to take such other and further action as may be necessary or advisable in the premises."

Thereafter and on January 14, 1928, a hearing was had on this motion and the probate court entered of record an order in which it was recited that when the information alleging the insanity of Martha B. Smith was filed, and when Martha B. Smith was served with notice by the sheriff, and when the information was tried before a jury, the said Martha B. Smith, was in the county of Buchanan and was served with notice by the sheriff, and that the court obtained jurisdiction of the subject-matter in the case and full jurisdiction over Martha B. Smith; that said Mary B. Baker who filed the motion had no interest in the estate of Martha B. Smith, and therefore had no right to maintain the motion and that the motion was overruled. From this order Mary B. Baker appealed and John J. Downey, as guardian, filed in the circuit court a motion to dismiss the appeal, and as grounds therefor alleged as follows:

"1. That the probate court of Buchanan county, Missouri, acquired and now has exclusive jurisdiction of the subject-matter, and of the person of the said Martha B. Smith, insane.

"2. That this court has no jurisdiction to hear and determine said cause de novo.

"3. That no appeal lies from the judgment of the probate court in this case.

"4. That appellant, Mary B. Baker, is not such a person as is designated by the statute as having the right of appeal in such case."

Said motion was set down for hearing and when the motion came on to be heard the circuit judge made the following statement:

"Let the record show that the evidence heard in this case applies with what bearing it may have upon either the motion or the merits of the case."

Upon the hearing in the circuit court it was shown that Mary B. Baker, who filed the motion in the probate court, and who appealed to the circuit court was the sister of Martha B. Smith, a person of unsound mind; that she had been appointed guardian of the person and estate of Martha B. Smith by the probate court of Jackson county, shortly before she filed the motion in the probate court of Buchanan county. The defendant John J. Downey introduced evidence from which it appears without contradiction that Martha B. Smith's husband was a resident of Jackson county, at the time she was incarcerated in the asylum in Buchanan county; that she was insane at the time she was placed in the asylum and has been of unsound mind ever since. The husband himself was put upon the stand and testified that he was then and ever since has been a resident of Jackson county, and he testified that he had signed the information wherein it was alleged that his wife was a resident of Buchanan county, because he was advised by counsel that this was necessary in order to secure the inquisition upon the question of his wife's sanity. At the close of the evidence the court entered an order which is as follows:

"Now on the 28th day of July, 1928, being the 66th day of the May 1928, term of this court, the above entitled cause came on for decision, having heretofore been submitted to the court on the pleadings filed and evidence adduced, and after due consideration the court finds from the evidence that the probate court of Buchanan county, Missouri, obtained jurisdiction of the person and of the estate of Martha B Smith, insane, and had full jurisdiction of the subject-matter to adjudge the said Martha B. Smith insane, by the judgment made and entered by said probate court on the 13th day of August, 1923; that the court finds that Martha B. Smith was in Buchanan county, Missouri, at the time the information was filed aganst her, charging her with being a person of unsound mind and incapable of managing her own affairs; that notice was legally and properly served upon her...