In re Tannory

• Decision Date: 07 February 1928
• Docket Number: No. 20313.,20313.
• Citation: 2 S.W.2d 189
• Parties: In re TANNORY. WELLS v. TANNORY et al.
• Court: Missouri Court of Appeals

2 S.W.2d 189

In re TANNORY WELLS v. TANNORY et al.

No. 20313.

St. Louis Court of Appeals. Missouri.

February 7, 1928.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Proceeding by Edward B. Velton Wells to inquire into sanity of Martha Frances Tannory. From a judgment of the probate court finding the subject of the inquiry a person of unsound mind and appointing a guardian, N. L. Tannory appealed to the circuit court. From a judgment finding the subject of inquiry to be a person of sound mind, the informant appealed to the Supreme Court, which transferred the case. Affirmed.

See, also, 297 S. W. 967.

Hostetter & Haley, of Bowling Green, for appellant.

Rendlen & White, of Hannibal, and Ras Pearson and F. D. Wilkins, both of Louisiana, Mo., for respondents.

BENNICK, C.

This proceeding originated in the probate court of Pike county upon the filing therein of an information in writing, made and verified by Edward B. Velton Wells, a nephew and adopted son of the subject of the inquiry, that Martha Frances Tannory, formerly Martha Frances Wells, a resident of such county, and the owner of real and personal property, was a person of unsound mind, and incapable of managing her affairs; and praying that an inquiry be had to the end that she might be adjudged to be a person of unsound mind, and incapable of managing her affairs. Upon a trial before the probate judge alone, no jury having been demanded by either of the parties, the court found that Mrs. Tannory was a person of unsound mind, and incapable of managing her affairs, and appointed the public administrator of Pike county as the guardian of her person and estate.

From such finding and judgment, N. L. Tannory, the husband of the subject of the inquiry, and a reputable citizen of the county, duly perfected an appeal to the circuit court of Pike county, pursuant to the provisions of section 282a, R. S. 1919, as added Laws 1921, p. 124. After the cause was lodged in the latter tribunal, there was filed a motion to dismiss the appeal, signed by Mrs. Tannory, her attorney of record in the probate court, her guardian, the informant, and the latter's attorneys, in which it was represented to the court that all of such parties were satisfied with the judgment theretofore rendered by the probate court, and did not desire to prosecute or participate in the trial of the case anew. Such motion coming on to be heard by the court was overruled, to which action of the court the informant alone preserved his exception. Thereafter the case was tried de novo to a jury, resulting in a verdict finding Mrs. Tannory to be a person of sound mind, and capable of managing her affairs. From the judgment so rendered, the informant was granted an appeal to the Supreme Court, which found, upon examination of the question sua sponte, that it had no jurisdiction, and ordered the case to be transferred here. In re Tannory (Mo. Sup.) 297 S. W. 967.

The bare assignment of error is made that the evidence was insufficient to support the verdict of the jury; but such point is not thereafter preserved in appellant's brief; and, consequently, under the usual rules of appellate practice, it may be treated as having been abandoned. Inasmuch as the actual details of the testimony are of unimportance upon the other questions presented for our decision, it will suffice to say that there was abundant testimony pro and con upon the matter in inquiry; and that the verdict finding Mrs. Tannory to be of sound mind and capable of managing her affairs was supported by substantial evidence.

Considering in their inverse order the two remaining propositions advanced by learned counsel for appellant, we first observe the argument that the circuit court never acquired jurisdiction of the case, the theory being that the statute (section 282a, R. S. 1919, as added Laws 1921, p. 124) allowing appeals to be taken from the findings of probate courts in cases of this general character was limited by its express terms to investigations of the mental condition of parties alleged to be insane, and did not extend to a case of the character of the one before us, wherein the finding appealed from was that the party was of unsound mind. Such rather ingenious contention has its basis in the fact...