Finley v. Farrar

• Decision Date: 04 May 1943
• Docket Number: 38367
• Parties: William T. Finley, Appellant, v. Charles Farrar
• Court: Missouri Supreme Court

171 S.W.2d 593

351 Mo. 26

William T. Finley, Appellant, v. Charles Farrar

No. 38367

Supreme Court of Missouri

May 4, 1943

Motions for Rehearing and to Transfer to Banc Denied June 1 1943.

Appeal from Dallas Circuit Court; Hon. C. H. Jackson Judge.

Affirmed.

Frank B. Williams and James P. Hawkins for appellant; Joe N. Brown of counsel.

(1) The probate court of Dallas County, Missouri, as shown by its own record, was not legally constituted as a court when it held inquisition of insanity on appellant and found him to be of unsound mind and appointed a guardian of his person and estate. Ainge v. Corby, 70 Mo. 257; Mobley v. Nave, 67 Mo. 544; Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; State ex rel. Klotz v. Ross, 118 Mo. 23; Stoval v. Emerson, 20 Mo.App. 322; Cole County v. Dallmeyer, 101 Mo. 57. (2) The purported judgment of insanity entered against appellant by the judge of the probate court on August 17, 1938, on a day when the court was not legally in session, is no judgment at all and may be, and should be, wholly disregarded in all situations whereby it is called in question. Carter v. Carter, 237 Mo. 624, Div. 1, 141 S.W. 873; Cook v. Penrod, 85 S.W. 676, 111 Mo.App. 128; Davidson v. Arne, 155 S.W.2d 155; Hoopes v. Rowley, 200 S.W. 443. (3) The purported judgment of insanity entered against appellant being no judgment at all, cannot form the basis of an estoppel or election of remedies. State ex rel. and to use of Abeille Fire Ins. Co. v. Sevier, Judge, 73 S.W.2d 361 (Mo. S.Ct. Banc), 335 Mo. 260. Cert Den. 293 U.S. 585, 55 S.Ct. 99, 79 L.Ed. 680. (4) It has been held that statutory enactments of the State are the highest expression of its public policy, and that if there is legislation on the subject the public policy of the State must be derived from such legislation. State ex rel. City of St. Louis v. Pub. Service Comm., 73 S.W.2d 393, 335 Mo. 448. (5) The action of the judge in vacation in making an order on August 16, 1938, adjourning to August 17 the previous session of the court held on August 13, was not an act by the court but was purely and strictly an act by the judge, and, therefore, not a judicial act. State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S.W. 252. (6) The court, in the Woodson case, on the strength of this pronouncement, held that except as to the appointment of the receiver by the judge in vacation an act specially authorized by statute, "the rest of the order is without authority and void" (l. c. 457). The above definition of the words "court" and "judge" is adopted and employed in State v. Horne, 79 S.W.2d 1044. (7) A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. In re Main's Estate, 152 S.W.2d 696. (8) The rule is well established that a relator in prohibition cannot draw on facts outside the record of the lower court for the purpose of impugning and contradicting the record actually made below. State ex rel. v. Duncan, 63 S.W.2d 135; State ex rel. Terry v. Holtkamp, 51 S.W.2d 13. (9) It is the established rule that where the question of jurisdiction involves the institution or organization of the court, as here, it cannot be waived by failure of a party to object to the jurisdiction or otherwise. Phillips v. Alford, 90 S.W.2d 1060. (10) The judgment of insanity rendered against William T. Finley by the Probate Court of Dallas County, Missouri, was a nullity. This being so, the probate court did not have jurisdiction to entertain the restoration proceedings afterwards instituted by Finley, nor did the circuit court, upon appeal therefrom, acquire jurisdiction in said matter. Said restoration proceeding does not constitute an estoppel against appellant, or an election of remedies, and the lower court erred in admitting evidence (a) of said restoration proceedings in the probate court and on appeal therefrom in the circuit court, and (b) the judgment of the circuit court on trial de novo. State ex rel. Townsend v. Mueller, 51 S.W.2d 8; Ruckett v. Moore, 295 S.W. 794; United Cemeteries Co. v. Strother, 119 S.W.2d 762; State ex rel. National Lead Co. v. Smith, 134 S.W.2d 1061; State v. Thurman, 17 Ala. 656; Ex parte McKay, 199 S.W. 637. (11) There was no legal service of the notice of insanity inquisition upon appellant here for the reason that R. O. Hyde was not a duly authorized officer with power to serve such notice, he being a constable and not a sheriff nor a deputy sheriff. Skelly v. Macabee, 217 Mo.App. 333, 272 S.W. 1089. (12) A legal or common law jury in Missouri consists of 12 men, and except in cases where the statute provides otherwise, a jury of less than 12 men is not a legal common law jury. Sec. 720, R. S. 1939; State v. McCarron, 51 Mo. 27; Norvell v. Deval, 50 Mo. 272; Cunningham v. Prusansky, 59 Mo.App. 498; State v. Waters, 1 Mo.App. 7; State v. Waters, 62 Mo. 196. (13) A person alleged to be insane has the right to a trial by jury in the probate court. In re Moynihan, 63 S.W.2d 410, l. c. 418, citing Sec. 448, R. S. 1929. (14) The proceeding against Finley was in invitum. It sought to deprive him of his liberty and the possession of his property. Baker v. Tener, 112 S.W.2d l. c. 356.

Theo. G. Scott and Lamm & Barnett for respondent.

(1) Mr Finley being a resident of Dallas County and owning property therein, jurisdiction of the subject matter was in the probate court of said county. Art. 18, Ch. 1, R. S. 1939; Art. VI, Sec. 34, Const. of Mo.; Sec. 2436, R. S. 1939; Hamilton v. Henderson, 117 S.W.2d 379. (2) ". . . where a court has general jurisdiction of the subject matter a lack of jurisdiction of the particular case may be waived, as may other objections to jurisdiction, such as lack of jurisdiction of the person." Among other methods, an objection to jurisdiction is waived "by invoking, or submitting to, the court's jurisdiction." 21 C. J. S., secs. 108, 109, pp. 161, 162, 163; Harwell v. Magill, 153 S.W.2d 362; Smith v. Gaskill, 272 S.W. 1087; Carson N. Bk. v. Am. Natl. Bk., 34 S.W.2d 143; Bomer v. St. Louis, etc., Ry. Co., 152 Mo.App. 357, 133 S.W. 106; 15 C.J., sec. 165, p. 846 (citing earlier Missouri cases). (3) In a lunacy proceeding ex necessitate the State has an interest and acts in its character of parens patriae. State ex rel. v. Guinotte, 257 Mo. 1, 165 S.W. 718; Buswell on Insanity, secs. 28-29; 32 C. J., pp. 627-629; State ex rel. Terry v. Holtcamp, 51 S.W.2d 13; In re Moynihan, 62 S.W.2d 410. (4) And it has been held in Missouri that the State's interest is such that the informant who commenced the inquiry de lunatico cannot dismiss it. State ex rel. v. Guinotte, 257 Mo. 1. (5) And an "inquiry as to the sanity" provided for in Sec. 492, R. S. 1939 (Sec. 493, R. S. 1929), in re restoration is equivalent to or included in the term "an investigation of the mental condition" provided for in Sec. 284, R. S. 1939 (Sec. 285, R. S. 1929), in re appeals in lunacy proceedings, and to the "inquiry" mentioned in Sec. 447, R. S. 1939 (Sec. 448, R. S. 1929). In other words, all of these statutes are talking about one thing, an inquiry de lunatico. Secs. 284, 492, 447, R. S. 1939; State ex rel. Wilkerson v. Skinker, 126 S.W.2d 1156. In re Tannory, 2 S.W.2d 189. (6) And it has been held that upon an inquiry under Sec. 492, R. S. 1939 (Sec. 493, R. S. 1929), in re restoration "the same issues as to sanity or insanity . . . are in question as were in question upon the previous inquiry under Sec. 448, R. S. 1929 (now Sec. 447, R. S. 1939), upon the original inquiry under which he was adjudged to be a person of unsound mind." Harrelson v. Flourney, 78 S.W.2d 895; State ex rel. Wilkerson v. Skinker, 126 S.W.2d 1156. (7) And on the same inquiry de novo in the Circuit Court of Dallas County on January 8, 1940, the circuit court properly adjudged that "William T. Finley is a person of unsound mind and incapable of managing his affairs." Hamilton v. Henderson, 117 S.W.2d 379. (8) When Finley himself filed an affidavit on September 16, 1938, alleging restoration under Sec. 492, R. S. 1939, he invoked the jurisdiction of the same court and asked and received affirmative relief in the same cause pending by reason of the affidavit filed by Rife on August 16, 1938, under Sec. 447, R. S. 1939, it being the law in lunacy proceedings that an inquiry or restoration to sanity is not an independent, original or separate proceeding but is merely a step in or part of the same and identical lunacy proceeding, in fieri, pending in the same probate court which was commenced by the filing of the affidavit on August 16, 1938, whereby the court was informed Finley was a person of unsound mind. State ex rel. v. McQuillan, 246 Mo. 586; Dutcher v. Hill, 29 Mo. 271; In the Matter of Marquis, 85 Mo. 615; State ex rel. v. Skinker, 126 S.W.2d 1156. (9) Exclusive jurisdiction of the subject matter being unquestionable, even if by his acts Finley did not perhaps create or confer jurisdiction of his person by estoppel, by his acts he invoked the court's jurisdiction in the same cause pending, asked and received affirmative relief and is thereby estopped to question, in the same cause in fieri, the court's jurisdiction and the validity of the judgments. Dutcher v. Hill, 29 Mo. 271; State ex rel. Bartlett v. Littrell, 26 S.W.2d 768. And by his subsequent numerous acts he did likewise. (10) On August 16, 1938, Finley was so insane that his remaining at liberty was dangerous to himself and the community and the necessity of the situation under the law required confinement and a speedy hearing de lunatico. In re Moynihan, 62 S.W.2d 410. (11) It is true a jury was requested by Rife, informant, not by Finley, but in...