Crow v. Meyersieck

• Decision Date: 31 October 1885
• Citation: 88 Mo. 411
• Parties: CROW, Appellant, v. MEYERSIECK.
• Court: Missouri Supreme Court

88 Mo. 411

CROW, Appellant,

v.MEYERSIECK.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellant.

(1) It was competent for appellant to introduce the notice and return of service under which the probate court acted, to show it acted without having first acquired jurisdiction of the person of appellant and that for want of jurisdiction all of its proceedings were void. R. S. secs. 1175, 1179; Ib., secs. 1027, 1029; Bateson v. Clark, 37 Mo. 31; Mortland v. Holland, 44 Mo. 58. (2) The information in writing, and notice, were the jurisdictional papers. Jurisdiction must be shown by the whole record, and when it appears from it that the court has no jurisdiction either over the person or subject matter, the judgment rendered in such case is void. Brownv. Woody, 64 Mo. 547, 551; Howard v. Thornton, 50 Mo. 291; Lenox v. Clarke, 52 Mo. 115.

T. A. Lowe for respondent.

(1) The answer of respondent set up a complete defence to the petition, and if true, would bar a recovery, and the onus of proving the matters set up in the answer necessarily devolved upon the respondent. Steph. Pl. 51 (8 Am. Ed.); Kortzendorfer v. City of St. Louis, 52 Mo. 204; 1 Greenl. Ev. sec. 556 (7 Ed.) (2) The probate courts of this state have original and exclusive jurisdiction in the matter of appointing guardians of persons of unsound mind (R. S. 1879, sec. 1176), and although a court of limited jurisdiction, yet a court of record (R. S. 1879, sec. 1175), and the judgments of such courts are just as conclusive and import the same verity until reversed or set aside as courts of general jurisdiction. Freeman on Judgments, secs. 122, 123, 524, 531. And the appellant was bound by the judgment. Freeman on Judgments, sec. 152; Heard v. Sack, 81 Mo. 610. The appearance of appellant waived all defects as to jurisdiction, unless his appearance was for the purpose of pleading to the jurisdiction. Tower v. Moore, 52 Mo. 118; Hite v. Hunton, 20 Mo. 286; Rippstine v. Ins. Co., 57 Mo. 86; Crear v. Clough, 52 Mo. 55; Griffin v. Van Meter, 53 Mo. 430.

RAY, J.

This is an action for injuries to the person and property of plaintiff, in depriving him of his liberty, confining him in a lunatic asylum, failing to provide him while held in custody proper medical care and attention, and selling and disposing of his personal property. The defence is a plea that the plaintiff was duly adjudged to be a person of unsound mind, and defendant appointed guardian of his person and estate by the probate court of Franklin county, and that as such guardian defendant took charge of and confined appellant at the asylum and sold the property, etc. Plaintiff contested the matter so pleaded as a defence, on the ground, that the proceedings of the probate court were void for want of jurisdiction of the person of plaintiff. The defendant claimed, at the trial, that under the pleadings the onus was on him to establish the defence set up in the answer, and the affirmative of the issue, thus asked, was given him and he thereupon introduced in evidence the record of the proceedings in the probate court, reciting the facts that due notice of the application for an inquiry into the mental condition of the appellant had been given, and the appearance of the parties, and the finding that the plaintiff was a person of unsound mind, and the order of appointment of the defendant as guardian of the person and estate of the plaintiff, the giving of bond by the defendant as guardian, and the further finding that the plaintiff was so furiously mad, and so far disordered in his mind as to endanger his own person and the persons and property of others, and the order of the court upon defendant to convey plaintiff to the state lunatic asylum, to remain until cured, or otherwise ordered, and to pay all costs for the care, attention, board and clothing, and other necessary expenses of the plaintiff from time to time, as should become necessary under the circumstances, and that the information of the insanity of the plaintiff was filed on the thirteenth day of June, 1881. The defendant then rested and plaintiff, for the purpose of showing that the probate court had not duly acquired jurisdiction over the person of said M. S. Crow, defendant therein, and that its said proceedings were, therefore, void, offered in evidence the original notice, upon which said proceedings of said probate court were had, together with the return of service of said notice endorsed thereon. Upon objection to its admission in evidence the same was excluded by the court. Whereupon plaintiff took a nonsuit, with leave to set the same aside, and after an unsuccessful motion for that purpose, brings the case here by appeal. The service of said notice and filing of said information, the inquest as to the insanity of said M. S. Crow by the jury, and the verdict in that behalf, and the order of the appointment of said Meyersieck as guardian, and the giving and approving of his bond as such, and the order of the court to said guardian to cause him to be conveyed to the state lunatic asylum upon a showing by said guardian that he was so furiously mad, or disordered, in his mind, as to endanger his own person, and the person and property of others, constituting the entire proceedings in the probate court in the matter of the insanity of said M. S. Crow were had, in the order named, upon one and the same day, to-wit: On the said thirteenth day of June, 1881.

It would seem that proceedings of this kind had been contemplated some six months before, and a notice then prepared, but that the matter was...