In re Marquis

• Decision Date: 30 April 1885
• Citation: 85 Mo. 615
• Parties: IN THE MATTER OF MARQUIS; SNYDER, Guardian, Appellant.
• Court: Missouri Supreme Court

85 Mo. 615

IN THE MATTER OF MARQUIS; SNYDER, Guardian, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

S. C. Major and J. W. Bagby for appellant.

(1) The only jurisdiction the probate court had in this matter being conferred by statute, its powers are limited within the confines of the statute which gave it jurisdiction. R. S., sec. 1187; Schell v. Leland, 45 Mo. 289. (2) The probate court, under the statute, could set aside an inquisition only during the term in which it was had, and when so set aside it is the duty of the court to impanel a new jury to inquire into the facts. R. S., sec. 5794. (3) The adjourned September term of the August term of the Howard probate court having finally adjourned, the regular August term was at an end; and the only jurisdiction of the probate court, being of statutory origin, its powers with reference to the finding of the jury and the order and final judgment of the court thereon was at an end. The transcript itself showing that there was no irregularity in the proceedings, or defect of the record, at the August adjourned term when the inquisition was had, the subsequent order and judgment of the probate court made at its regular November term with reference thereto was a nullity. Ashby v. Glasgow, 7 Mo. 320; Peake v. Reed, 14 Mo. 79; State ex rel., etc., v. County Court of Sullivan Co., 57 Mo. 522; Phillips v. Evans, 64 Mo. 17; Bartling v. Jamison, 44 Mo. 141; Danforth v. Lowe, 53 Mo. 217; Jefferson County v. Cowan, 54 Mo. 235; State ex rel. Gordon v. Hopkins Octobbr Term 1883.

A. J. Herndon, Thos. Shackelford, and Draffen & Williams for respondent.

(1) The probate court properly set aside the proceedings had September 10, 1883, declaring respondent insane, although the motion asking this to be done was not filed till a subsequent term. Dutcher v. Hill, 29 Mo. 271. (2) The record shows no reason why notice was not given to respondent of the proceeding against him. The proceedings were properly set aside for such irregularity. Harbor v. Ry., 32. Mo. 423; Stucker v. Cooper Circuit Court, 25 Mo. 401; Freeman on Judgments (3 Ed.) secs. 97 and 98.

NORTON, J.

On the tenth day of September, 1883, Lafayette Marquis filed in the probate court of Howard county an information that his father, Washington Marquis, was a person of unsound mind and praying that an inquiry of the matter be had. The court made the following order: “Now, at this day, comes Lafayette Marquis and files information that Washington Marquis is a person of unsound mind, and upon proof that he is not in condition of mind and body to be brought into court, it is ordered that he be not brought into court.” The facts were inquired into by a jury, which returned a verdict that said Marquis was a person of unsound mind and incapable of attending to his business, whereupon the court rendered judgment according to the verdict, and appointed B. F. Snyder as guardian of the person and estate of said Marquis, who qualified by giving bond as the order of the court and statute required. At the next regular term of said court, viz.: on the fourteenth of November, 1883, the said Marquis, who had been adjudged insane at the August term, appeared and moved the court to set aside the judgment and the order appointing said Snyder guardian, alleging as ground therefor that notice had not been given him of said proceedings; that he was not of unsound mind, and the fact that such proceedings had been instituted against him was concealed from him, and that he...