Bartlett, In re

• Decision Date: 16 April 1958
• Citation: Bartlett, In re, 161 N.E.2d 76, 108 Ohio App. 93, 9 O.O.2d 150 (Ohio App. 1958)
• Parties: , 9 O.O.2d 150 In re BARTLETT.
• Court: Ohio Court of Appeals

Page 93

108 Ohio App. 93

161 N.E.2d 76, 9 O.O.2d 150

In re BARTLETT.

Court of Appeals of Ohio, Marion County.

April 16, 1958.

Syllabus by the Court.

1. Section 5123.52, Revised Code, provides only for a hearing on an application for release from an institution to which the applicant has been committed and not for a hearing on the applicant's competency at the time of such application; the procedure for procuring an adjudication of competency is provided by Section 5123.51, Revised Code, and application therefor may not be filed until the applicant has received a certificate of discharge from the institution to which he was committed.

2. Where a Probate Court fails to comply with any of the provisions for the giving of notice of a hearing on an affidavit alleging a person to be mentally ill, as required by Section 5123.21(A), Revised Code, such court is without jurisdiction to render a judgment that such person is mentally ill, and a commitment pursuant to such order is illegal and void.

3. A person so committed does not, by subsequently filing an application for release, enter a general appearance and thereby waive any right and is not estopped from asserting lack of jurisdiction in the Probate Court to enter the original judgment and order commitment thereon.

4. An application for release, filed under Section 5123.52, Revised Code, and the subsequent release of the applicant, do not render moot questions raised by the applicant's subsequent motion to vacate the original judgment finding him to be mentally incompetent.

John W. Yager, Toledo, for appellant Kelsey Bartlett.

Robert O. Stout, Pros. Atty., Marion, for appellee.

MIDDLETON, Presiding Judge.

This is an appeal from a judgment of the Probate Court denying the motion of appellant to vacate its former judgment finding the appellant to be mentally ill and its order of commitment to a mental hospital made pursuant to that judgment.

On April 14, 1954, Mary E. Bartlett, then the wife of appellant, filed an affidavit in the Probate Court alleging appellant to be mentally ill. The Probate Court set the hearing on the affidavit for the following day, April 15, 1954, and on April 15 a hearing was had and the Probate Court entered a judgment adjudging the appellant to be mentally ill, and ordered him committed to the Columbus Receiving Hospital, from which hospital he was later transferred to the Toledo State Hospital.

On June 9, 1955, the appellant filed an application in the Probate Court, under Section 5123.52, Revised Code, to be released and discharged from the Toledo State Hospital. As a result of the hearing on this application the court found the appellant was 'not now mentally ill' and ordered him discharged from the Toledo State Hospital; pursuant to this order the Superintendent of the Toledo State Hospital issued a certificate of discharge to the appellant; and, thereafter, on April 3, 1957, the appellant filed, in the Probate Court, a motion to vacate the judgment finding him to be mentally ill and ordering his commitment. This motion the court denied, and it is from the overruling of this motion that appeal is prosecuted to this court.

The basis for the motion is that the judgment of the court was irregularly obtained and that the Probate Court was without jurisdiction to enter the judgment.

For his assignments of error, the appellant sets forth:

1. The Probate Court lacked jurisdiction to adjudge appellant to be mentally ill and order him to be committed to a mental institution pursuant to such judgment.

2. The Probate Court erred in denying and overruling appellant's motion to vacate, and its order denying and overruling appellant's motion to vacate is contrary to law.

At the time of the filing of the affidavit alleging appellant to be mentally ill, Section 5123.21, Revised Code, provided as follows:

'No hearing shall be had upon the affidavit provided for in Section 5123.18 of the Revised Code, until the probate judge has caused written notice by mail or otherwise as the court directs, to be given to the following persons:

'(A) Any one person designated by the person believed to be mentally ill if such person is considered by the court competent to make a selection; but if the person is considered by the court incompetent to make a selection, then the notice shall be sent to the person's attorney or to the next of kin or a friend of the person other than the person who filed the affidavit; if the person selected to represent the patient fails to appear, the court shall appoint a guardian ad litem to act in the patient's behalf;

'(B) Any person whom the probate judge determines should have notice of such hearing;

'All persons entitled to notice under this section may waive such notice, and their failure to appear shall not invalidate any action taken by the court under Section 5123.23 of the Revised Code.'

From the undisputed facts appearing in the record it is disclosed that the probate judge failed to comply with any of the provisions for the giving of notice of a hearing on the affidavit alleging appellant to be mentally ill as required in subsection (A) of Section 5123.21 of the Revised Code.

In the case of State ex rel. Parsons v. Bushong, 92 Ohio App. 101, 109 N.E.2d 692, this court held that the record must show complete observance of all the requisites of the statute to give the Probate Court jurisdiction, and, where the record fails to show such strict compliance with the statute, the Probate Court is without jurisdiction to render a judgment.

The record of the Probate Court in the instant case shows upon its face that the court was without jurisdiction, and, therefore, the judgment that the appellant was mentally ill and his commitment pursuant to that order were illegal and void.

State ex rel. Parsons v. Bushong, supra, 92 Ohio App. 101, 109 N.E.2d 692; In re Koenigshoff, 99 Ohio App. 39, 119 N.E.2d 652; In re Guardianship of Irvine, 72 Ohio App. 405, 52 N.E.2d 536; In re Wertz, Ohio App., 118 N.E.2d 188.

It is, however, urged that the appellant is estopped from attacking the lack of jurisdiction in the original proceedings by reason of his having filed, on June 9, 1955, an 'application for release'; and that be virtue of the filing of such application the appellant waived any defect in the original proceedings and entered a general appearance therein.

In his application for release the appellant states it is filed under the provisions of Section 5123.52, Revised Code, which are as follows:

'Any person, not under indictment or conviction for crime, committed to an institution under sections 5123.01 to 5123.62, inclusive, and 5125.01 to 5125.38, inclusive, of the Revised Code, may, after the expiration of one year from the date of his commitment, make written application, to the court by which he was committed, for his release.

'Such application may be made personally, by counsel, by guardian, or by next friend but must be supported by a certificate of a reputable physician.

'The court shall grant a hearing upon such application,...