In re Harrelson v. Flournoy

• Decision Date: 03 December 1934
• Docket Number: No. 18199.,18199.
• Citation: 78 S.W.2d 895
• Parties: IN THE MATTER OF INSANITY OF MARTIN HARRELSON, APPELLANT, v. JOHN P. FLOURNOY, GUARDIAN, ETC., RESPONDENT.
• Court: Missouri Court of Appeals

78 S.W.2d 895

IN THE MATTER OF INSANITY OF MARTIN HARRELSON, APPELLANT, v. JOHN P. FLOURNOY, GUARDIAN, ETC., RESPONDENT.

No. 18199.

Kansas City Court of Appeals. Missouri.

December 3, 1934.

Appeal from Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

REVERSED AND REMANDED.

James M. Houston, W.P. Houston and J.S. Brierly for appellant.

William B. Dickinson, Martin B. Dickinson and Crouch & Crouch for respondent.

REYNOLDS, C.

On October 1, 1926, the appellant, Martin Harrelson, was, by the Probate Court of Cass County, adjudged of unsound mind and incapable of managing his own affairs; and William S. Flournoy was appointed guardian of his person and estate.

The record shows that, at such time, appellant was seized of an estate of the approximate value of $100,000, consisting of personal property including notes, mortgages, and bonds, and of real estate both in fee and under ninety-nine year lease in Missouri, California, and Arizona, including farms, apartment buildings, and other pieces of property.

On April 17, 1933, the appellant filed in the said probate court his affidavit setting out his former adjudication of unsoundness of mind and incapacity to manage his affairs; alleging that he had been restored to his right mind and that he was not at such time insane or of unsound mind, but was a person of sound mind and was sane and capable of managing his affairs; and praying that the court hold an inquiry as to his sanity as provided by the statutes of Missouri in such cases and that, if upon such inquiry it should be found that he was sane and capable of managing his affairs, he be discharged from guardianship and his guardian required to settle his accounts and restore to him his property.

It, in substance, appears from the abstract of record that, from an adverse finding and judgment in the probate court upon said inquiry held, appellant duly perfected an appeal to the Circuit Court of Cass County and that transcript thereon was duly filed in said court on July 14, 1933, together with the original application and affidavit of date April 17, 1933.

The cause, being tried de novo in the circuit court, resulted in a verdict by the jury on September 30, 1933, finding that appellant had not been restored to his right mind and was not at such time of sound mind and capable of managing his own affairs, upon which verdict judgment was entered by the court on said date adjudging that appellant had not been restored to his right mind and was not then of sound mind and capable of managing his affairs.

From such judgment, appellant prosecutes this appeal, based upon alleged error upon the trial in the refusal of certain instructions offered and in the giving of certain instructions requested, and confines his assignments of error to such complaints.

In the course of the proceedings in the circuit court and prior to the trial, respondent, by motion to dismiss, challenged the capacity of appellant to make the affidavit upon which the inquiry was based, which motion was denied by the court.

Respondent also, prior to the trial, filed in the circuit court a motion that appellant be required to furnish security for costs, no bond having been furnished by him upon the appeal. This motion was also denied.

The respondent excepted to the action of the court upon each of the motions referred to.

The evidence upon the trial is not set out in the bill of exceptions, other than it is stated therein that there was evidence introduced by the respective parties upon the trial tending to prove certain facts bearing upon and within the issues — upon which facts the instructions given and those requested and refused were based — as follows:

"1. That plaintiff was a resident of Cass County, Missouri, and had been such resident all his life;

"2. That he was thirty-nine years old "3. That his estate was of the approximate value of $100,000 or more consisting of personal property including notes, mortgages and bonds, and of real estate, both in fee and under ninety-nine year lease in Missouri, California and Arizona, including farms, apartment buildings, and other types of property.

"4. That he was at the time of the giving of such evidence restored to his right mind.

"5. That the affidavit or information under which he was adjudicated of unsound mind offered and received in evidence, is in words and figures as follows, to-wit:

"In the Probate Court of Cass County, Missouri.

"Now comes Catherine Harrelson of Belton, Cass County, Missouri, who is the mother of Martin Harrelson of said Belton, Missouri, and informs the court that said Martin Harrelson is a person of unsound mind and incapable of managing his affairs and she prays the court that an inquiry thereinto be had by the court.

                                         "CATHERINE HARRELSON
                

"State of Missouri, County of Cass.

"Now comes Catherine Harrelson and upon her oath states that to her best information and belief the facts stated in the foregoing information are true.

                                         "CATHERINE HARRELSON
                

"Subscribed and sworn to before me this 16th day of September, 1926.

                 "[Seal]    V.I. BARE, "Notary Public
                

"Examined, approved and filed September 22, 1926.

                  "LESLIE A. BRUCE, "Judge of Probate
                

"6. That the order entered October 1, 1926, by the Probate Court of Cass County, Missouri, upon the hearing under said information, offered and received in evidence, is in words and figures as follows, to-wit:

"Record Book 16, page 647: "(Trial and Verdict, Guardian Appointed, Continued for Bond.)

                 "Estate of Martin Harrelson, Unsound Mind,
                         Wm. S. Flournoy, Guardian.
                

"Comes Otis C. Martin, sheriff of this county, and makes return on notice served on Martin Harrelson, by delivering a copy of same to said Martin Harrelson, on September 27, 1926. The court finds said Martin Harrelson was duly served with a true and perfect copy of original notice in manner and form as provided by law, on September 27, 1926.

"This matter coming on regularly for trial and said Martin Harrelson, not being present in court, is represented by D.C. Barnett, attorney and complainant being represented by Crouch & Crouch, attorneys. It is ordered a venire issue to the sheriff of this county for a jury of twelve good and lawful men, residents of this county. Comes the sheriff and returns into court the following who are chosen to act as jurors to try this cause, to-wit: Hogan Davis, I.A. Stone, A.L. Phillips, Winfrey Russell, Harry Denham, Theodore Sweitzer, Chas. Reece, John Dunn, Loren Honley, Robert Austin, Leo Armstrong and Chas. Bird.

"This cause is taken up, evidence heard and submitted to the jury, who retire to consider their verdict and having fully considered same return into court the following verdict: `We, the jury, find Martin Harrelson of unsound mind and incapable of managing his own affairs. Chas. Bird, Foreman.' It is ordered and adjudged by the court that Martin Harrelson is a person of unsound mind and incapable of managing his own affairs. It is ordered a guardian be appointed to take charge of the person and estate of said Martin Harrelson. Come Mrs. J.B. Harrelson and Ben Harrelson and request the court, in writing, to appoint Wm. S. Flournoy as guardian of Martin Harrelson, unsound mind. The judge finds Wm. S. Flournoy is a proper and suitable person to act as such guardian and he is hereby appointed as such guardian and ordered to enter into bond in the penal sum of $30,000, conditioned as required by law. This cause is continued for bond."

Appellant's chief complaints herein are based upon the refusal of instructions 1, 2, 7, and 9, requested by him, and the giving of Instruction D, asked by respondent, and the giving by the court of its own motion of Instruction C-1 and the instruction relating to the form of the verdict.

OPINION.

1. At the threshold of this case, we are met by the insistence of respondent that this proceeding is void and by his motion to dismiss the cause. It is insisted that appellant himself, being the ward and under adjudication of unsoundness of mind, has no capacity to make the allegation herein of restoration to his right mind or to make the application for his discharge and that respondent's motion to dismiss the cause for such reason, having been erroneously denied by the trial court, should be sustained here and the proceeding dismissed.

When it is considered that the adjudication of unsoundness of mind under which appellant was placed under guardianship has no conclusiveness as to continuing incapacity (32 C.J., p. 646, para. 225; R.S. 1929, sec. 493) and that there are times when a person so adjudicated may be restored to his right mind and that such time, if it comes, must come before the application for restoration may be made and that such restoration must exist at the time the application is made, it does not appear incongruous that the ward should be permitted to file such application in his own behalf. If restored, he, doubtless, would know as much about his restoration as anyone; and it is a matter finally for the determination of the court or a jury, anyhow. If he were not permitted so to do, where restored, it might sometimes work a hardship as he might not always readily find some other person willing to do it for him.

There is excellent authority for permitting him to do so unless he is prohibited by the statute. It is in harmony with the practice pursued in the chancery courts of England. [Cockrill v. Cockrill et al., 79 Fed. 143, 92 Fed. 811; Buswell on Insanity, art. 69.]

We, further, are unable to find that he is so prohibited by our statute although it may appear therefrom that the person filing the application might be, by the court, required to give security for costs and, in cases where the ward has filed the application, such requirement might be impossible of compliance by reason of the ward's legal incapacity to execute the contract providing for such security. Such, however, if...