Herman v. St. Francois County Bank

• Decision Date: 11 January 1927
• Docket Number: Mo. 19524.
• Parties: HERMAN v. ST. FRANCOIS COUNTY BANK et al.
• Court: Missouri Court of Appeals

291 S.W. 156

HERMAN v. ST. FRANCOIS COUNTY BANK et al.

Mo. 19524.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Suit by Mary A. Herman, guardian of Frank A. Herman, against the St. Francois County Bank and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Davis & Damron, of Fredericktown, for appellants.

W. A. Brookshire, of Farmington, for respondent.

DAUES, P. J.

This is a suit by plaintiff as guardian of Frank A. Herman, who had theretofore been declared of unsound mind, against the defendant bank and the commissioner of finance of the state of Missouri, the bank then being in the course of liquidation, to cancel a certain promissory note held by said bank against Frank A. Herman, and to require the surrender to plaintiff of certain shares of bank stock which was held by the defendants as collateral with the money payments on the note to the plaintiff as guardian of Herman, on the ground that, at the time the transactions were made, Herman was insane, and had been adjudged insane, and that none of the transactions were made while such ward was in a lucid or sane condition. It is alleged that the notes were wholly without consideration.

The answer admits the liquidation of the bank; that Herman executed the note and made certain payments; and that he delivered four shares of the capital stock of the Bank of Ste. Genevieve mentioned in the petition to Robert H. Davis, special deputy to the finance commissioner, for the purpose of securing the payment of the note in controversy. Then the answer denies generally the other allegations and averments of the petition.

The court made a finding and decree, which sets forth that Frank A. Herman was declared insane by the probate court of Ste. Genevieve county prior to the date of these transactions, and that his wife, Mary A. Herman, was duly appointed guardian, and was so acting at the time the note was given, and up to the day of the trial. The court then finds that Herman executed the note for the sum of $864.90, dated October 2, 1923, payable to defendant bank, and that Herman paid defendant on said note the sum of $227.33, and, further, that Herman transferred four shares of stock of the Bank of Ste. Genevieve to the defendant in payment of said note, all of which transactions were made at the time Mary A. Herman was legal guardian of said Frank A. Herman, and while he was insane and of unsound mind. It was then decreed that defendant cancel the note executed as aforesaid, and cancel the assignment of the four shares of stock of the Bank of Ste. Genevieve, and that defendant surrender to plaintiff both the promissory note and the four shares of stock, together with the sum of $227.33 paid on said note. It was asserted by plaintiff's counsel at the trial, but there is no evidence to such effect, that the note in question was given for bank stock in the defendant defunct bank.

The assignment of errors first reaches the very important question as to whether the purported judgment of the probate court of Ste. Genevieve county by which Frank A. Herman was adjudged insane is valid. This is based on the objection made that the records of the probate court failed to show affirmatively that notice was served on Herman of the inquiry into his sanity.

Plaintiff introduced in evidence the record of the proceedings of the probate court which shows an adjudication of Herman's insanity. The proceedings are dated October 15, 1921, and show the information of Valentine Miller, which charges that Frank A. Herman is of unsound mind. Then the following record appears:

"Now, on this fifteenth day of October, 1921, comes Valentine Miller of Ste. Genevieve county, in person, and Frank A. Herman, by his attorney assigned him by the court, he not being able by reason of his insanity to appear by himself in this court."

It is then recited that the cause was heard and submitted to the jury, and that there was argument of counsel; that the jury returned a verdict finding Herman to, be a person of unsound mind, and incapable of managing his affairs; and that his condition was such as to endanger the safety of the community He was ordered taken to the asylum at Farmington, Mo. The record also shows the application of Mary A. Herman as guardian, her appointment and bond.

The vitals of the controversy involve the question as to whether this judgment on collateral attack is void, since it does not affirmatively show that Herman was served with notice of the inquiry. It is insisted on the part of respondent that a recital of the judgment of the probate court that the person whose sanity was under consideration was present, and participated in the trial or hearing by attorney, is sufficient to show that the court had jurisdiction to render the judgment, although there is a statutory requirement of notice; secondly, that the statutory notice required in sanity inquests may be waived just as a summons in ordinary civil actions may be waived; and, thirdly, it is insisted that probate courts have general jurisdiction to adjudge a person of unsound mind and to appoint guardian's of persons of unsound mind. Therefore, in the absence of recitals of record or other competent proof to the contrary, the court must be held to have taken all the steps and found all the facts necessary to uphold its judgment.

It seems settled that an adjudication of lunacy generally renders contracts entered into thereafter invalid, regardless of the fact whether he has a guardian or not. Revised Statutes Missouri 1919, § 482; Kieline v. Wessell, 53 Mo. App. 667; Payne v. Burdette, 84 Mo. App. 332; Coleman v. Farrar, 112 Mo. 54, 20 S. W. 441; Rannells v. Gerner, 80 Mo. 474. In the instant case, however, there was a guardian.

It is conceded that the probate court of Ste. Genevieve county had been informed by Valentine Miller charging that Herman was of unsound mind. There is no question that the record shows that the Informant was present, and that the alleged lunatic was represented by counsel appointed by the court who participated in the trial, and who argued the case to the court and jury. There was a verdict by the jury, and the court entered its judgment adjudicating Herman to be of unsound mind. There is no dispute that Mary A. Herman, plaintiff in this case, was appointed guardian of her husband. It is not disputed by defendants, appellants here, that, after such adjudication, and before the guardian was discharged, the transactions alleged in the petition occurred. What the appellants complain of is the failure of the judgment to recite that the notice was given, as required by section 446, Revised Statutes Missouri 1919. The abstract of the record is silent as to this notice. The record does not show that the notice was not given in accordance with the statute, but it does show that the alleged lunatic was represented by counsel appointed by the court, who conducted the hearing in his behalf.

In the case...