In re Ellern, 29531.

• Decision Date: 05 July 1945
• Docket Number: 29531.
• Citation: 160 P.2d 639,23 Wn.2d 219
• Parties: In re ELLERN. v. SUPERIOR COURT FOR SPOKANE COUNTY. ELLERN
• Court: Washington Supreme Court

160 P.2d 639

23 Wn.2d 219

In re ELLERN.

ELLERN v. SUPERIOR COURT FOR SPOKANE COUNTY.

No. 29531.

Supreme Court of Washington, En Banc.

July 5, 1945

Proceedings in the matter of William C. Ellern, an insane person. From an order dismissing the petition of William C. Ellern for vacation of judgment of the Superior Court of the State of Washington for Spokane County, adjudging petitioner to be an insane person and directing his confinement in a hospital after petitioner refused to plead further following the entry of a general order sustaining demurrer to petition petitioner appeals.

Reversed and remanded with instructions.

SIMPSON MILLARD, ROBINSON, and JEFFERS, JJ., dissenting.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

Harry H. Johnston, of Tacoma, and Berkey & Cowan, of Spokane, for appellant.

Leslie M. Carroll and Clarence P. Smith, both of Spokane, for respondent.

GRADY Justice.

The petition of William C. Ellern prays that the judgment of the superior court of Washington for Spokane county entered March 20, 1944, adjudging him to be an insane person and directing his confinement in a hospital at American Lake be vacated. The prosecuting attorney for Spokane county appeared by a demurrer to the petition. The grounds of the demurrer were that the petition did not state facts sufficient to constitute a cause of action, and that the action had not been commenced within the time limited by law. The court entered a general order sustaining the demurrer. The petitioner elected to stand upon his petition, refused to plead further and an order was entered dismissing the petition. The petitioner had taken an appeal from the order of dismissal.

The respondent does not urge its plea of the statute of limitations in support of the order sustaining the demurrer. This could not be done successfully as the petition was filed within one year from the time the judgment was entered and also from the time of the removal of the disability of petitioner as provided by P P C 71-7. A copy of the commitment is attached to and made a part of the petition. In the commitment there are recitals to the effect that the petitioner was brought Before the trial judge for examination on a charge of insanity and that no jury was demanded either by him or on his behalf. The material allegations for the petition in so far as are necessary for a determination of the case, are that on February 15, 1944, the petitioner was taken into custody by reason of a complaint made against him by his wife, Bernice Ellern, charging him with being an insane person and dangerous to be at large; that his attorney made and filed a demand in writing that the question of his insanity be determined by a jury; that this demand was ignored by the trial judge; that he was not present when the hearing was had to determine his mental condition; that on July 11, 1944, he was declared by the superior court of Washington for Pierce county to be sane and not dangerous to be at large, and was discharged from custody.

The prayer of the petition is that the judgment of the superior court of Washington for Spokane county adjudging him to be an insane person be vacated.

The theory of the petitioner is that the court was without jurisdiction to hear and determine the question of his insanity without a jury after a demand for a jury trial had been made. The case being Before the court upon a demurrer we must treat the allegation of the petition as true, even to the extent that it pleads facts disputing the recitals in the judgment of the court, as the petition makes a direct attack upon the judgment.

The respondent contends that the exclusive remedy available to appellant was to have taken an appeal to this court from the judgment, and that he cannot legally proceed to petition for a vacation of the judgment, its theory being that conducting the hearing after a demand for a jury had been made was merely an error of law reviewable only on appeal, and it was not intended that P P C 71-7, Rem.Rev.Stat. § 464, providing for the vacation of judgments upon the grounds stated, should be used as a means for the court to review or revise judgments, or to correct any errors of law into which the court may have fallen.

We have decided that errors of law cannot be corrected by petition to vacate the judgment when no fraud has been practiced upon the court. Dickson v. Matheson, 12 Wash. 196, 40 P. 725; Kuhn v. Mason, 24 Wash. 94, 64 P. 182; Morgan v. Williams, 77 Wash. 343, 137 P. 476; In re Jones' Estate, 116 Wash. 424, 199 P. 734.

One of the grounds for the vacation of a judgment provided by P P C 71-1, § 3, is: 'For mistakes, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.'

The question arises whether the action of the court in proceeding to determine the question of the insanity of appellant without a jury was an error of law or an irregularity. A definition of what constitutes an error of law, which we think correct, was made by the court in the case of Pratt v. Pratt, 141 Cal. 247, 74 P. 742, 743, as follows: '* * * an error of law is committed when the court, either upon motion of one of the parties or upon its own motion, makes some erroneous order or ruling on some question of law which is properly Before it and within its jurisdiction to make.'

Examples of error of law are: Erroneous rulings on motions and demurrers directed to pleadings; rulings on qualifications of a juror or the admissibility of evidence, and other matters of like character made in the course of an action.

A definition of irregularity was adopted by this court in the case of Merritt v. Graves, 52 Wash. 57, 100 P. 164, 165, as follows: 'An irregularity is defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit or doing it in an unseasonable time or improper manner.'

This definition finds approval in many cases to be found in Vol. 22, Words and Phrases, Perm.Ed., pp. 654-656. It seems quite clear from these definitions that the court did much more than commit a mere error of law. Proceeding to determine the question of insanity without a jury after one was demanded was an irregularity. This is made clear by what we decided in Re Eastman, 151 Wash. 321, 275 P. 724, in which we held that the commitment of a person to the state custodial school without appointing a guardian for such person and summoning the relatives as required by statute was irregular and required a vacation of the commitment. In that case we adopted the rule set forth in 14 R.C.L. p. 556: 'Where a statute prescribes a certain method of procedure to determine whether persons are insane, such inquiries must be conducted in the mode prescribed, and the statute regulating such proceedings must be followed strictly.'

We therefore hold that although the appellant might have taken an appeal from the judgment adjudging him to be an insane person, this remedy was not exclusive and he had the right to proceed under P P C 71-1, Rem.Rev.Stat. § 464, to have the judgment vacated.

It is provided by P P C 641-27, § 16, Rem.Rev.Stat. § 6930, that a person charged with being insane shall have a hearing to decide upon the question of insanity Before a jury if he or anyone in his behalf makes a demand for a jury. The appellant contends that the court was without jurisdiction to hear the complaint and adjudge him insane after he had made a demand for a jury, and, therefore, the judgment was void and must be vacated when application is made therefor; but we think that when the court proceeded to conduct the hearing without a jury it acted in excess of its jurisdiction rather than acting without jurisdiction, and that the judgment was not void, but was subject to direct attack pursuant to the statute.

When the Constitution of this state was adopted there was in effect Chapter CX, § 1632 of the Code of Washington Territory, Code of 1881, and it provided that when the mental condition of a person was the subject of judicial inquiry 'such person or any person in his behalf may demand a jury to decide upon the question of his insanity.'

Section 21 of Article 1 of the Constitution provides as follows: 'The right of trial by jury shall remain inviolate, * * *.'

The rule which we think is supported by the weight of authority is that whatever right may have been given to a trial by jury in proceedings to adjudicate insanity by a territorial statute, a constitutional guaranty that the right to trial by jury shall remain inviolate preserves such right to the extent given by the statute. State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 P. 958, 58 Am.St.Rep. 39; State v. Strasburg, 60 Wash. 106, 110 P. 1020, 32 L.R.A.,N.S., 1216, Ann.Cas.1912B, 917; In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 91 A.L.R. 74; White v. White, 108 Tex. 570, 196 S.W. 508, L.R.A.1918A, 339; State ex rel. Peper v. Holtcamp, 235 Mo. 232, 138 S.W. 521; Sporza v. German Sav. Bank, 192 N.Y. 8, 84 N.E. 406.

The provision of P P C 641-27, § 16, Rem.Rev.Stat. § 6930, relating to a hearing Before a jury like the territorial statute does not accord an absolute right, but it is qualified or conditional upon a demand being made for a jury trial. It is a right that can be waived and is waived unless a demand is timely made.

There is some seeming conflict of authority as to the effect upon a judgment rendered after a trial by the court in disregard of a demand properly made for a jury trial. The difference in viewpoint is whether the judgment is void for want of jurisdiction to render it, or whether the court acted in excess of its jurisdiction. An examination of the subject leads us to...