Commonwealth v. Redd

• Decision Date: 12 December 1922
• Citation: 245 S.W. 507,196 Ky. 798
• Parties: COMMONWEALTH v. REDD.
• Court: Kentucky Court of Appeals

245 S.W. 507

196 Ky. 798

COMMONWEALTH v. REDD.

Court of Appeals of Kentucky.

December 12, 1922

Appeal from Circuit Court, Harrison County.

Proceeding by Sarah M. Redd, seeking restoration to the position of one sui juris. From a decree in her favor, the Commonwealth, on behalf of her committee, filed motion and grounds for a new trial, and on denial thereof the Commonwealth appeals. Judgment affirmed.

Chas I. Dawson, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., R P. Blair, of Berry, and Wade H. Lail and T. E. King, both of Cynthiana, for the Commonwealth.

M. C Swinford and W. S. Cason, both of Cynthiana, for appellee.

SAMPSON J.

In March, 1916, appellee, Sarah M. Redd, was by a judgment of the Harrison circuit court found to be a person of unsound mind, and she was directed to be placed in an institution and a committee was appointed for her to look after her property. About that time her lands were sold for the purpose of paying certain debts owing by her, and the residue, amounting to about $9,000, was invested in interest-paying government bonds. After being treated at several institutions, some private and some public, for her mental disorder, appellee concluded she was of sound mind and returned home, where she lived at one of her grandson's paying board. The interest from her bonds had been used for her maintenance and support while she was in the asylums. In February, 1922, she filed in the Harrison circuit court, which court had found her to be a lunatic in 1916, an affidavit in the nature of a petition, stating that she had been adjudged a lunatic and had a committee appointed for her, that she had taken medical treatment for several months and had regained her normal mental powers, and that she no longer needed the committee, and asked to be restored to the position of one sui juris. Without demurring to this affidavit and motion, the committee filed a responsive affidavit in the nature of an answer, by which most of the averments of the affidavit filed by appellee were traversed, and some affirmative matter set up. A jury trial was had, and the following verdict returned:

"We, the jury, find defendant, Sarah M. Redd, of sound mind. D. N. Lafferty, Foreman."

Whereupon the court adjudged that Sarah M. Redd is of sound mind and capable of handling her estate mentioned in the pleadings. Appellant, commonwealth of Kentucky, acting for and on behalf of the committee, filed motion and grounds for new trial, setting forth five alleged reasons why the motion should be granted, which are as follows:

"(1) Because the verdict is not sustained by sufficient evidence and is contrary to law. (2) Because of errors of law occurring at the trial and excepted to at the time. (3) Because the court refused to permit this committee to introduce proper and competent evidence offered by him on the trial of the case, to which he objected and at the time excepted to the ruling of the court, and because the court permitted Sarah M. Redd, over the objection of her committee, to introduce incompetent and irrelevant evidence, to which ruling of the court he at the time excepted. (4) Because the court failed to properly instruct the jury, and because the instructions given by the court were not the law of this case, to the giving of which this committee objected and excepted at the time. (5) Because the trial of said cause, in the manner in which it was tried, is contrary to law, and because there is and was no law authorizing the proceedings or trial as was had."

In brief of counsel only two grounds for a reversal of the judgment are insisted upon: (1) This proceeding was had under a former statute, section 2160, which statute was repealed by an act of the Legislature of March, 1918, and the proceedings thereunder are void; (2) error of law in giving instruction No. 3.

1. While it appears that the proceedings were somewhat...