In re Crouse

• Decision Date: 22 June 1909
• Citation: In re Crouse, 120 S.W. 666, 140 Mo. App. 545 (Mo. App. 1909)
• Parties: In the Matter of JESSIE B. CROUSE, non compos. JESSIE B. CROUSE, Appellant, v. J. B. GREENSFELDER, Guardian, Respondent
• Court: Missouri Court of Appeals

120 S.W. 666

140 Mo.App. 545

In the Matter of JESSIE B. CROUSE, non compos.

JESSIE B. CROUSE, Appellant, v. J. B. GREENSFELDER, Guardian, Respondent

Court of Appeals of Missouri, St. Louis

June 22, 1909

April 28, 1909, Submitted

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

AFFIRMED.

STATEMENT.--Information in writing as provided by section 3650, Revised Statutes 1899, was filed in the probate court of the county of St Louis, to the effect that one Jessie B. Crouse was of unsound mind and incapable of managing her affairs. On a trial in that court before a jury, a verdict was rendered declaring her of unsound mind, whereupon the probate court appointed J B. Greensfelder as her guardian. Jessie B. Crouse filed her motion to have the inquisition and the verdict of the jury and the appointment of the guardian set aside, alleging as grounds for the motion, that the probate court of St. Louis county did not have jurisdiction over her person and estate at the time the judgment and appointment was made and entered; that she was not in the county of St. Louis within the meaning of the laws of the State of Missouri relating to insane persons, at or prior to the time the court entertained jurisdiction of the matter and entered upon the inquisition that she was not of unsound mind; that no good cause was shown to the court for the exercise of its jurisdiction, and that it was not shown to the court that Mrs. Crouse was the owner of any property. This motion was signed by the attorney for Jessie B. Crouse. It was overruled by the probate court, and at the same term Jessie B. Crouse filed her application, supported by affidavit, praying an appeal to the circuit court of the county. The appeal was allowed. At the return term of the circuit court, the guardian filed a motion to dismiss the appeal on the ground that the appeal was taken without any warrant or authority on the part of said Jessie B. Crouse; that it was improperly allowed by the probate court of St. Louis county; that the inquisition whereby Jessie B. Crouse was declared to be of unsound mind is a strictly statutory proceeding and that all proceedings thereunder are required to be in accordance with the statute governing such cases; that the statute governing such cases does not allow an appeal from such proceedings, and that the circuit court has no jurisdiction to hear or determine any matters brought before it on appeal from the probate court in a case of this kind. The motion was sustained by the court and the appeal dismissed. Whereupon Jessie B. Crouse filed an affidavit for an appeal to this court which was allowed, bill of exceptions signed and filed and the case is here on her appeal.

Judgment affirmed.

John Lally for respondent.

(1) The circuit court erred in refusing to hear or take jurisdiction of this case upon appeal to it; the appeal was from a judgment of the probate court based upon the verdict of a jury, and the right of appeal from such judgment is expressly given by statute. Sec. 1674, R. S. 1899; Coleman v. Farrar, 112 Mo. 54; In re Marquis, 85 Mo. 615.

C. H. Kern and Sam D. Hodgdon for respondent.

(1) The jurisdiction of the probate court is of statutory creation and of limited jurisdiction and as such is dependent on and restricted by the act creating it. Kenrick v. Cole, 46 Mo. 85; Snoddy v. Pettis Co., 45 Mo. 361; State ex rel. v. Fowler, 108 Mo.App. 469. (2) Chapter 1, art. XIV, sec. 278, defines the decisions of the probate court from which an appeal will lie and unless specifically authorized by some clause thereof an appeal will not lie to the circuit court. Kenrick v. Cole, 46 Mo. 85; Flick v. Schenk, 212 Mo. 275; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Guinotte, 113 Mo.App. 399. (3) An appeal in a lunacy proceeding not being specifically provided for in our statutes will not lie from a decision of the probate court to the circuit court. Morris v. Morris, 128 Mo.App. 675; State ex rel. v. Jackson, 93 Mo.App. 520.

OPINION

REYNOLDS, P. J. (after stating the facts).

Counsel for appellant relies on section 1674, Revised Statutes 1899, which by the fourth subdivision confers upon the circuit courts appellate jurisdiction "from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind." Referring to this section, this court, in Morris v. Morris, 128 Mo.App. 673, 107 S.W. 405, in which case a like right of appeal was attempted to be founded upon this same section, has said: "The superintending control conferred by this section does not embrace an appeal from a decision of the probate court to the circuit court. It can only be exercised by an original writ issuing out of the circuit court, directed to the probate court, as the writ of certiorari, mandamus or prohibition. We think appellant has misconceived his remedy." The appeal was not from an adjudication of the fact of lunacy, a proceeding having been unsuccessfully instituted to declare a person insane--the verdict being in favor of the sanity of the party,--and the costs were taxed against the party who instituted the proceeding. It was from the taxation of these costs, that the appeal was taken. It will be observed that in this opinion of the learned judge, no notice is taken of the first clause of subdivision 4, of section 1674, namely, "appellate jurisdiction from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law," the judge basing his conclusion alone on the second clause of this subdivision which gives superintending control, and he holds that that superintending control is not to be exercised through an appeal. We are therefore, in the case at bar, brought to consider the effect of the first clause of this subdivision, granting a right of appeal in all cases in which the appeal "is not expressly prohibited by law."

What is now subdivision 4, of section 1674, R. S. 1899, has appeared in our statutes in substantially the same words for many years. In the Revised Statutes of 1855, it appears as the fourth clause of the eighth section of the forty-seventh chapter of that revision in this language, "appellate jurisdiction from the judgments and orders of county courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them." Prior to 1875, when our present constitution was adopted, probate jurisdiction and jurisdiction of proceedings under an inquisition of lunacy, were, by law, vested in the county courts, the few probate courts that we then had existing under special acts, local in their application. Construing this section, in the revision of 1855, the Supreme Court, in Hall v. County Court of Audrain County, 27 Mo. 329, held that under it, the right of appeal lay to the Supreme Court from an order of a county court removing the guardian of an insane person. The right of appeal on this phase of the case was challenged. Judge RICHARDSON, who delivered the opinion, remarked, after quoting this fourth subdivision of section 8, chapter 47, Revised Statutes 1855, that the court had not been referred to any provision of the statute which prohibits an appeal in a case like the one then before the court. Referring to the fifteenth section of the chapter, which defines the exclusive original jurisdiction of the county courts and which enumerates, among other subjects, the power of appointing and displacing the guardians of orphans, minors and persons of unsound mind and closes with the sweeping declaration of the right of appeal in all cases to the circuit court in such manner as may be provided by law, the learned judge holds that while the general right of appeal is given, the manner is not provided, nor the operation of the appeal, nor the manner of the trial of the case in the circuit court on appeal. The absence of all of which, however, the court holds does not affect the right of appeal. The right of appeal on the verdict establishing insanity was not clearly in decision.

In the Matter of Marquis, 85 Mo. 615, the relator filed an information in the probate court of Howard county, alleging that his father was a person of unsound mind and praying that an inquiry into that be had. The probate court made an order finding him to be a person of unsound mind and incapable of attending to his business. The court entered judgment accordingly and appointed a guardian of his person and estate. At the next regular term of the court, Marquis appeared and moved the court to set aside the judgment, alleging various grounds, among others, that he was not of unsound mind and that the proceeding had been instituted against him without his knowledge and without notice, and that he was in proper condition to be brought into court. The motion was sustained, whereupon the guardian appealed to the circuit court, where the judgment of the probate court was affirmed. From that judgment the guardian appealed to the Supreme Court. The Supreme Court, in an opinion delivered by Judge NORTON, affirmed the judgments of the circuit and probate courts. No question appears to have been made in either court as to the right of appeal, but while no doubt whatever is suggested as to jurisdiction in the matter on appeal or as to the jurisdiction of the circuit court to entertain the appeal, that question was not in decision.

In the case of Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441 the question was over the right of appeal from orders approving or disapproving the...