Chaloner v. Sherman

• Decision Date: 05 June 1914
• Docket Number: 202.
• Citation: 215 F. 867
• Parties: CHALONER v. SHERMAN.
• Court: U.S. Court of Appeals — Second Circuit

215 F. 867

CHALONER v. SHERMAN.

No. 202.

United States Court of Appeals, Second Circuit.

June 5, 1914

[Copyrighted Material Omitted]

W. D Reed, of New York City, for plaintiff in error.

J. H Choate, Jr., of New York, City, for defendant in error.

Before COXE and ROGERS, Circuit Judges, and MAYER, District Judge.

MAYER District Judge.

Chaloner, who was adjudicated an incompetent by the Supreme Court of the state of New York in 1899, brought this action in 1904 to recover damages against Sherman, who was appointed his committee in 1901, for alleged wrongful withholding of and refusal to turn over on April 4, 1904, Chaloner's property then in Sherman's custody as committee.

The numerous assignments of error, because of exclusion of testimony by the trial court, are based upon the theory that this court has power to set aside the judgment of the New York Supreme Court. The sole question is whether that judgment is void or was procured by extrinsic fraud so as to subject it to a successful collateral attack in another jurisdiction.

On March 10, 1897, an ex parte order was made by a justice of the New York Supreme Court, committing Chaloner as an insane person to the institution known as Bloomingdale Insane Asylum at White Plains, Westchester county. This order was in accordance with the Insanity Law of New York (Laws of 1896, c. 545) which permits a commitment without notice and that statute has been held to be constitutional. Sporza v. German Savings Bank, 192 N.Y. 8, 84 N.E. 406; Matter of Walker, 57 A.D. 1, 67 N.Y.Supp. 647.

While an inmate of that institution under the commitment, a proceeding looking to the appointment of a committee was commenced by a petition presented by two of his brothers to the Supreme Court in the county of New York. This petition was accompanied with the Affidavits of several physicians as to the mental condition of the alleged incompetent, and a notice of motion that on May 19, 1899, the petitioners would apply to the court for an order granting the prayer of the petition. Thereupon, on May 9, 1899, the court made an order requiring personal service on Chaloner of this order, the notice of motion, petition, and affidavits.

On the same day, viz., May 9, 1899, personal service was made on Chaloner at the Bloomingdale Asylum.

On May 19, 1899, when the motion was returnable, no one appeared in opposition thereto, and the court, as provided by sections 2327 and 2328 of the New York Code of Civil Procedure, ordered that a commission in the nature of a writ de lunatico inquirendo be issued out of and under the seal of the court directed to three commissioners to inquire by a jury of the county of New York into the competency of the alleged incompetent, and it was also ordered that the sheriff be instructed to summon a jury in the manner required by law. It was further ordered that the commission be executed in the county of New York and that at least five days' previous notice of the time and place of the execution of the commission be given to Chaloner and to the person having charge of him who, in this instance, was the medical superintendent of the asylum. It was further ordered that the commissioners might, in their discretion, dispense with Chaloner's attendance unless the jurors or any of them should require such attendance.

Notice dated May 23, 1899, that the commission would be executed on June 12, 1899, at 4 p.m., at the New York county courthouse, was personally served on both Chaloner and the medical superintendent on June 6, 1899.

The commissioners took their oath on June 5, 1899, and it was filed on June 12, 1899.

The jury was duly summoned for and sat with the commissioners on June 12, 1899, at the New York county courthouse. Chaloner did not appear in person or by attorney. Counsel for the petitioners stated that, if after hearing the testimony the jury desired the presence of the alleged incompetent, he would be brought before them. Testimony was taken as to the mental condition of Chaloner and as to the property owned by him.

The medical superintendent testified that Chaloner said he was physically unable to be present.

Counsel for petitioners again said that he thought it entirely proper to take an adjournment to any day agreeable to the commissioners in order to produce Chaloner before the jury, but the jury stated that they did not desire his production. Thereupon counsel called the jury's attention to the order of the court requiring the presence of Chaloner if any of the commissioners or the jurors so wished.

Thereafter the medical superintendent was again called and stated that to produce Chaloner would temporarily do him harm mentally and that Chaloner 'said he did not want to come down. ' Dr. Carlos F. MacDonald then testified that to call Chaloner would 'tend to aggravate his mental condition.'

Finally, the matter was submitted to the jury and a verdict was returned that Chaloner was incompetent.

A notice of motion for June 23, 1899, for an order confirming the inquisition and appointing Prescott Hall Butler, committee of the person and estate of Chaloner, was personally served on him on June 15, 1899, at the asylum.

There being no opposition, the court, on June 23, 1899, made and filed its decretal order of confirmation and appointed Butler the committee. Butler subsequently resigned, and his resignation was ordered accepted by the court on November 19, 1899, and Sherman, the defendant here, was appointed in his place.

Chaloner claims that he is and at all times was a resident of Virginia and for that reason his sanity could not be determined in New York; that he was lured into the state of New York in 1897 and was committed improperly without notice; that the inquiry de lunatico in 1899, in any event, should have been in Westchester county; that the notice thereof was insufficient; that the decretal order and all the proceedings were void, among other reasons, because he was not present before the commissioners and the sheriff's jury; that he always was and now is sane and was so declared in 1901 by a court of competent jurisdiction in Virginia; and that therefore the appointment of Sherman was void.

Insanity is, of course, not necessarily a continuing condition, but the trial court was right in holding that Chaloner's present condition never became an issue in the case and could not have become so, unless the court below had been justified in collaterally setting aside the decretal order.

Then, if defendant had adduced some evidence of present incompetency as an affirmative defense, and then only would the present mental condition of plaintiff have been an issuable fact.

The trial court was likewise right in excluding testimony to show the mental condition of Chaloner in 1899, for that issue could not be litigated in this action and was solely for the New York courts. Matter of Curtiss, 137 A.D. 584, 122 N.Y.Supp. 468; Id., 199 N.Y. 36, 92 N.E. 396.

Whether or not, in 1897, plaintiff was lured into this state,...