Baum v. Greenwald

• Decision Date: 28 June 1909
• Docket Number: 13,602
• Citation: 49 So. 836,95 Miss. 765
• Court: Mississippi Supreme Court
• Parties: SIDONIA BAUM v. SAMUEL GREENWALD

49 So. 836

95 Miss. 765

SIDONIA BAUM v. SAMUEL GREENWALD

No. 13,602

Supreme Court of Mississippi

June 28, 1909

FROM the chancery court of Lauderdale county, HON. JAMES L MCCASKILL, Chancellor.

Greenwald appellee, was complainant in the court below; Mrs. Baum appellant, was defendant there. From a decree appointing a guardian of her estate the defendant appealed to the supreme court and the complainant and one McRaven prosecuted a cross-appeal. The facts are fully stated in the opinion of the court.

Decree reversed.

Witherspoon & Witherspoon, for appellant.

G. Q. Hall, Hall & Jacobson and J. M. McBeath, for appellee and cross-appellant Greenwald.

Amis & Dunn, for McRaven, a cross-appellant.

[The briefs of counsel in this case were all lost from the record when it reached the reporter.]

MAYES J. Smith, J. concurring.

OPINION

MAYES, J.

On the 7th day of February, 1908, Samuel Greenwald, the brother of Mrs. Sidonia Baum, proceeding before the chancery clerk in vacation and under section 2430 of the Code of 1906, filed an application, in which it was alleged that his sister was of unsound mind, and prayed for the issuance of a writ de lunatico inquirendo for the purpose of having her sanity inquired into, and further prayed that the clerk appoint a guardian for her person and estate. This proceeding was instituted for the sole purpose of procuring the appointment of a guardian for the purpose above stated, as it was instituted under the section above cited, exclusively dealing with the procedure to be followed with reference to guardian and ward as affecting persons of unsound mind, and it appears, from the proceedings and otherwise, that Mrs. Sidonia Baum had inherited from her stepfather quite a considerable estate. In due course the clerk issued an order, directed to the sheriff, as required by section 3219 of the Code of 1906, requiring him to summon the alleged lunatic to contest the application, and also to summon six free-holders to make inquiry as to the sanity of Mrs. Baum, and to return the result of the inquisition to the clerk. This order seems to have been duly executed on all parties, and was made returnable on the 12th of the same month. The inquisition was not held on the return day, but continued from time to time by the clerk, who seems to have constituted himself a trial judge in this proceeding and conducted the cause as if it was a trial in the circuit court, until the 18th day of February, when the inquisition began before the jury so summoned and was protracted for several weeks. The cause finally resulted in a finding by the jury that Mrs. Baum was of unsound mind, and the clerk appointed a guardian for both her person and estate. Throughout all this long contest the parties had supplied themselves with a stenographer and all the testimony was taken down, and at the conclusion of the trial before the clerk there was a motion for a new trial, which was overruled by the clerk, and a bill of exceptions on the part of Mrs. Baum tendered and signed, embodying all the evidence as shown by the stenographer's notes.

At the succeeding term of the chancery court, among other vacation acts which came on for approval by the court, a motion was made to approve the action of the clerk in adjudging Mrs. Baum to be of unsound mind and appointing a guardian for her person and estate. Objection was duly made to this by counsel for Mrs. Baum, and in support of this objection the whole proceeding had by the clerk was offered in proof by the counsel for Mrs. Baum, which included all the testimony taken before the jury under the direction of the clerk. This was objected to by counsel for the petitioner; but the objection was overruled by the chancellor, and all that the clerk did, or permitted to be done, as shown in the proceedings, was reviewed by the chancellor, and resulted in a decree setting aside the action of the clerk in so far as the appointment of a guardian for the person of Mrs. Baum was concerned, but approving the act of the clerk in appointing a guardian for the estate of Mrs. Baum, and taxing one-half the cost of the proceeding against the estate of Mrs. Baum and the other half of the cost was taxed against Samuel Greenwald, the petitioner. From this decree Mrs. Baum appeals generally, and there is a cross-appeal by Samuel Greenwald from that part of the decree which taxes him with one-half of the cost, and also an appeal by McRaven from the decree of the chancellor removing him as guardian and appointing W. D. Cameron.

It will not be necessary to notice the appeal of McRaven in any way, since his rights are necessarily determined under the decision. A large number of witnesses were introduced by the parties on both sides, and the stenographic notes comprise over 1,100 pages. It would therefore be practically impossible, as well as unnecessary, to give in detail or in substance the testimony of these various witnesses relating to the sanity or insanity of Mrs. Baum. We shall first deal with the legal questions involved and then with our conclusions on the facts.

The two sections of the Code involved are 3219 and 2430. Section 3219 deals with the general subject of lunacy, and provides the procedure to be pursued when the sanity of any person is sought to be inquired into, whether the proceeding is instituted under section 2430, for the purpose of procuring the appointment of a guardian alone, or whether under section 3219, for the general purpose of having the party declared insane and confined, as directed by sections 3220 and 3221. While the main object of section 2430 is for the purpose of having a guardian appointed for the person adjudged to be of unsound mind, the incidental power is given in that section to have the ward confined in the insane hospital also, if the exigencies of the situation so require; but that is not its principal object. Section 3219 is intended as a summary police regulation, whereby dangerous or indigent lunatics or insane persons may be cared for or confined, for protection to themselves or for the safety of the public, as the case may be. This summary power is confined by section 3219 to the chancery courts, to be exercised by the clerks at any time subject to the approval of the court always. In other words, where the proceeding is under section 3219 solely, being a summary police regulation, the jurisdiction to issue the writ of lunacy and summon a jury to inquire as to the sanity of a party must be initiated before the clerk, and his acts subsequently reviewed and set aside or approved by the court, and where the proceeding is under the above section it may be initiated by any relative; but if no relative or friend initiate the proceeding, either refusing or neglecting...