Barber v. People, 16942

Decision Date16 February 1953
Docket NumberNo. 16942,16942
Citation127 Colo. 90,254 P.2d 431
PartiesBARBER v. PEOPLE.
CourtColorado Supreme Court

Victor A. Miller, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Frank A. Wachob, Asst. Gen., and James D. Parriott, Jr., Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error was respondent in lunacy proceedings instituted in the county court of the City and County of Denver, Colorado. We will herein refer to her as respondent.

Although inquiries concerning the mental condition of respondent began some time prior to the events forming the basis of this case, we are concerned only with the legality of the proceedings which occurred on or subsequent to the 13th day of June, 1952. It is disclosed by the record that on that date one Florene Doyle filed in the county court her verified complaint in lunacy, in which she alleged that respondent:

'(1) is so insane or distracted in her mind, as to endanger her own person or property, or the person or property of another, or others, if allowed to go at large; (2) is, by reason of old age, disease, weakness of mind, feebleness of mind or * * *, incapable, unassisted to properly manage and take care of herself or her property, and therefore would be likely to be deceived or imposed upon by artful or designing persons; and prays that inquiry be had as provided by law.'

The court immediately issued an order directing that respondent be taken into custody. Said order was directed to the sheriff and included the following:

'You Are, Therefore Hereby Ordered to immediately take said Marie Barber into custody and until further order of this Court confine her in Mt. Airy Sanitarium, in the City and County of Denver, pending the determination of said inquiry.'

The sheriff executed this order and made a return in which he stated that he had taken respondent into custody and confined her 'in Colorado Psycho as herein directed.' Upon being advised that respondent could not be admitted to Mt. Airy Sanitarium, he struck out the words 'Mt. Airy Sanitarium' from the above order of court and inserted the words 'Colo. Psycho', and made the same change in the copy of said order which was served on respondent.

A commission was appointed June 13, 1952, whose first session was to be held, as indicated by the order or court, at Mt. Airy Sanitarium on June 24th at 1:30 o'clock in the afternoon. On June 16th respondent was served with formal notice, issued by the clerk of the court, that said hearing would be held June 24th. As originally issued, the notice fixed the place and time of the hearing as, 'Mt. Airy Sanitarium at 1:30 P.M.' The sheriff struck itarium at 1:30 P.M.' The sheriff struck out the designated place and time and substituted the single word 'Psycho' for the place of the hearing and '2:00' P.M. as the time. William McGlone as guardian ad litem was served with a copy of the notice in its altered form.

The hearing was continued until July 1st by an order entered pursuant to a letter, signed by the City Attorney and directed to the Clerk of the County Court, requesting same. This letter contained the statement, 'The above is at the request of Mr. Emory Chilton, Attorney for the patient.' When the continuance was granted another commission was appointed and the court ordered its first meeting to be held 'at Mt. Airy Sanitarium, in the City and County of Denver, on the first day of July, 1952, at 1:45 PM,' and Samuel Sterling was appointed guardian ad litem in place of Mr. McGlone. A new notice, of the time and place of said hearing, was served on respondent June 23rd and upon the guardian ad litem the following day. These notices contained the same alterations made by the sheriff which we have described in connection with the first notice issued.

June 24th the City Attorney directed a letter to the Clerk of the County advising that respondent was 'at the Colorado Psychopathic Hospital instead of Mt. Airy Sanitarium. Mrs. Barber will be seen by the Commission at Colorado Psychopathic Hospital on July 1, 1952.' No formal order of court was entered changing the place for the first session of the commission from Mt. Airy Sanitarium to the Colorado Psychopathic Hospital. July 1st the commission met at the Colorado Psychopathic Hospital and the record discloses that respondent was present, and that the commission examined the following witnesses: Florane Doyle, who had signed the complaint in lunancy, Mrs. Augusta Anticiweck, Betty Riese, Dr. John Appleby, and Mr. Chilton and Mr. Miller who previously had acted as counsel for respondent and who represented her in the proceedings in the trial court. The report of the commission was that respondent was so insane or distracted in her mind as to endanger her own person or property or the person or property of another or others if allowed to go at large. On July 1st the county court entered an order of adjudication and commitment based on the report of the commission. July 3rd Victor A Miller made written demand for a trial by jury upon the issues of respondent's mental condition. The said demand was over the signatures of Mr. Miller as a friend in behalf of respondent, and J. Emory Chilton as her attorney. On July 17th a motion was filed on behalf of respondent by Mr. Miller as her friend and Mr. Chilton as her attorney. Counsel in this motion challenged the sufficiency of the complaint in lunacy; questioned the regularity and legality of the hearing held by the commission, and all subsequent proceedings resulting in the adjudication and commitment of respondent; and requested her release.

A lengthy hearing was held on the motion; evidence was taken; and exhibits disclosed the changes made in the orders of court and notices as set forth above. In ruling on this motion the court said, inter alia:

'There are, of course, a lot of things lacking in Chapter 105 concerning the care of persons referred to therein, and it is commendable that counsel did discover all call the court's attention to the situation concerning the reckless changing of orders of the court by persons who are...

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17 cases
  • People in Interest of Clinton, 87SC200
    • United States
    • Colorado Supreme Court
    • October 17, 1988
    ...the district court in People in Interest of Clinton, 742 P.2d 946 (Colo.App.1987). Based on its interpretation of Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953), the court of appeals concluded that because of the failure to comply with the statutory provisions regarding forthwith appoi......
  • People v. Jones
    • United States
    • Colorado Court of Appeals
    • September 11, 2014
    ...“to act.” Mile High United Way, Inc. v. Bd. of Assessment Appeals, 801 P.2d 3, 5 (Colo.App.1990); accord Barber v. People, 127 Colo. 90, 95, 254 P.2d 431, 434 (1953)(“[I]n an action which is entirely statutory, the procedure therein prescribed is the measure of the power of the tribunal to ......
  • People ex rel. L.R.B.
    • United States
    • Colorado Court of Appeals
    • May 30, 2019
    ..."to act." Mile High United Way, Inc. v. Bd. of Assessment Appeals , 801 P.2d 3, 5 (Colo. App. 1990) ; accord Barber v. People , 127 Colo. 90, 95, 254 P.2d 431, 434 (1953) ("[I]n an action which is entirely statutory, the procedure therein prescribed is the measure of the power of the tribun......
  • Gilford v. People, No. 99SC79.
    • United States
    • Colorado Supreme Court
    • May 30, 2000
    ...the service and notice provisions of section 27-10-107(3).9See Iwerks, 130 Colo. at 89, 273 P.2d at 134-35; cf. Barber v. People, 127 Colo. 90, 95-6, 254 P.2d 431, 434 (1953) ("[V]alid service upon the respondent of the actual order entered by the court, authorizing seizure of respondent, i......
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2 books & journal articles
  • Pre-trial Technical Defenses to Mental Health Certification
    • United States
    • Colorado Bar Association Colorado Lawyer No. 07-1988, July 1988
    • Invalid date
    ...1980). 3. CRS §§ 27-10-105(1) and 106(6). 4. Id. 5. CRS § 27-10-107(1). 6. CRS § 27-10-109(4), as amended. 7. CRS § 27-10-107(1)(b). 8. 254 P.2d 431 (Colo. 1953). 9. Emphasis by the Sisneros Court. Supra, note 2 at 57. 10. Clinton, supra, note 1 at 947. 11. This defense has been substantial......
  • The Clinton Mental Health Case-a Civil Procedure Lesson
    • United States
    • Colorado Bar Association Colorado Lawyer No. 19-9, September 1990
    • Invalid date
    ...NOTES _____________________ Footnotes: 1. 762 P.2d 1381 (Colo. 1988). 2. 783 P.2d 848 (Colo. 1989). 3. 742 P.2d 946 (Colo.App. 1987). 4. 254 P.2d 431 (Colo. 1953). 5. Id. at 434. 6. CRS § 27-10-107(2). 7. See, James, "Pre-Trial Technical Defenses to Mental Health Certification," 17 The Colo......

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