In re The Application of Ida M. Wellman for A Writ of Habeas Corpus

• Citation: 3 Kan.App. 100,45 P. 726
• Decision Date: 01 June 1896
• Docket Number: 467
• Parties: In the matter of the Application of IDA M. WELLMAN for a Writ of Habeas Corpus
• Court: Kansas Court of Appeals

45 P. 726

3 Kan.App. 100

In the matter of the Application of IDA M. WELLMAN for a Writ of Habeas Corpus

No. 467

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed June 12, 1896.

MEMORANDUM.-- Original application by Ida M. Wellman for a writ of habeas corpus. Granted. The opinion herein, filed June 12, 1896, states the facts.

Waters & Waters and W. H. Cowles, for petitioner.

H. C Safford, county attorney, for respondent.

GARVER J. CLARK, J., concurring; GILKESON, P. J., not sitting.

OPINION

GARVER, J.:

On April 14, 1896, an information in writing was filed in the probate court of Shawnee county, charging Mrs. Ida M. Wellman with being a person of unsound mind, and praying that an inquiry thereinto be made. The probate judge forthwith issued a warrant, directed to the sheriff of said county, ordering him to arrest the said Ida M. Wellman and commit her to the county jail, and that she be brought before the court upon the hearing of said charge at 10 o'clock on the morning of the next day. The sheriff executed the warrant by taking Mrs. Wellman into his custody, about 5:30 o'clock P. M April 14, at her residence in the city of Topeka, where she was detained until after a trial was had, on April 15, in the probate court, a verdict returned adjudging her to be of unsound mind, and an order made committing her to the state insane asylum at Topeka. Since that time she has been detained at the asylum. Said commitment and detention are alleged to be illegal, and she seeks to be released therefrom by means of the writ of habeas corpus.

It is contended on behalf of the petitioner that the trial and proceedings had in the probate court are invalid and void, for the reason that she was afforded no opportunity to be present at the trial, either in person or by counsel, or to participate therein. There is no dispute upon the facts. Not only was there an entire absence of any legal notice of the nature and the pendency of the proceedings, but the petitioner was held in duress at a distance from the place where the hearing was had, and, so far as appears, there was no one present at the trial to say anything in her behalf. This proceeding being of the most delicate character, naturally tending to affect social standing, liberty, and estate, the jurisdiction should be exercised with corresponding care, and with a scrupulous regard for every individual right of the person affected.

The court had the undoubted right, upon the filing of the information, to direct that Mrs. Wellman be brought before the court. But we know of no authority for the issuance of a warrant for the arrest and imprisonment of a person thus proceeded against, where the only showing made respecting his condition is that he "is a lunatic incapable of managing his own affairs, and a fit person to be committed to the insane asylum." When it is made to appear that a person is so far disordered in mind as to endanger his own person, or the person or property of others, he may be confined in some suitable place while proceedings are pending, and until an order for his restraint is regularly made by the probate court. (Gen. Stat. 1889, PP 3719, 3720.) Otherwise, a person charged with lunacy is entitled to his liberty until, by regular trial in the probate court, he has been duly adjudged to be of unsound mind. Then for the first time he may be deprived of his liberty, and placed in the insane asylum, or in the custody of some proper person as guardian. The discretionary power which the statute (Gen. Stat. 1889, P 3679) gives, to cause the person alleged to be of unsound mind to be brought before the court, is doubtless for the purpose of aiding the court, or the jury, in making a just and correct determination of the matters before them. It is a provision made for the benefit of the court, rather than of the party whose mental condition is the subject of inquiry. It is not for restraint.

The statute also expressly requires that "the person alleged to be insane shall have the right to be present at the trial to be assisted by counsel, and to challenge jurors, as in civil cases." (Gen. Stat. 1889, P 3681.) This right is denied unless an opportunity is afforded to be present to exercise it. The express granting of the right to appear necessarily implies that notice should be given of the...