In re Wretlind

• Decision Date: 12 March 1948
• Docket Number: No. 34579.,34579.
• Citation: 225 Minn. 554,32 N.W.2d 161
• Court: Minnesota Supreme Court
• Parties: In re WRETLIND. HATTON et al. v. STATE.

32 N.W.2d 161

225 Minn. 554

In re WRETLIND HATTON et al. v. STATE.

No. 34579.

Supreme Court of Minnesota.

March 12, 1948.

Rehearing Denied May 3, 1948.

Appeal from District Court, Lyon County; A. B. Gislason, Judge.

Proceeding in the matter of Bernetta Wretlind, alleged incompetent, upon petition of Sophie Hatton and Bernetta Wretlind, by Sophie Hatton, her natural guardian, against the State of Minnesota to obtain release and discharge of alleged incompetent from care and custody of director of public institutions, department of social security, and the superintendent of the Minnesota School and Colony at Faribault, Minnesota. From a judgment decreeing alleged incompetent to be a feebleminded person and ordering her return forthwith to Minnesota School and Colony, petitioners appeal.

Reversed.

L. P. Johnson, of Marshall, for appellants.

J. A. A. Burnquist, Atty. Gen., and Irving M. Frisch, Sp. Asst. Atty. Gen., for respondent.

THOMAS GALLAGHER, Justice.

Proceeding to obtain the release and discharge of Bernetta Wretlind, a minor and allegedly incompetent, from the care and custody of the director of public institutions, department of social security, and the superintendent of the Minnesota School and Colony at Faribault, Minnesota, to which said minor had been previously committed by order of the probate court of Lyon county, Minnesota.

A petition to obtain such release was executed by the mother and stepfather of said child. Both in probate court and in the subsequent appeal to the district court, they sought restoration to capacity of said child on the ground, among others, that the probate court at the time it made its original order committing the child to custody was without jurisdiction, and hence that such order was null and void. In both probate court and district court, evidence was submitted by both sides on the issue of jurisdiction.

This appeal is from the judgment of the district court dated March 5, 1947, in substance decreeing that Bernetta is a feeble-minded person and so mentally defective as to be unable to manage herself or to adjust herself to her social environment; that she is in need of external care, supervision, and control for her own welfare and safety and that of the public; and that she be returned forthwith to the state school for the feeble-minded at Faribault known as the Minnesota School and Colony.

On appeal, petitioners assert that the evidence compelled judgment that the probate court at the time of the execution of its original order had no jurisdiction over the person of said Bernetta Wretlind because (1) no verified petition for her commitment was filed; (2) no notice of hearing was ever served upon her in accordance with the statutes; and (3) her personal appearance and the appearance of her mother and stepfather at the hearing did not constitute a waiver of her constitutional right to notice.

The evidence submitted indicates that at the time the original proceeding was instituted in probate court a verified petition, signed by Sophie Hatton, the mother, and by Charles Hatton, the stepfather of Bernetta, had been filed in the probate court of Lyon county. The evidence further disclosed, however, that no notary public was present at the time said petition was signed and that the verification thereon was affixed thereto by the notary public subsequent to its execution, at a different time and place, and without appearance of the petitioners, who at no time acknowledged it before any officer qualified to administer an oath.

The record discloses that no notice was given of the hearing, with the possible exception of a form postcard (which set the time and place of the hearing) to the original petitioners.

At this hearing there were present Bernetta, her mother, her stepfather, and the county attorney of Lyon county, who, under the statute then in effect,¹ was required to represent the interest of the minor. Medical and other testimony was submitted, and subsequently the probate court made the order here under attack committing the child, then 12 years of age, to the custody of the director of public institutions, department of social security, and the superintendent of the Minnesota School and Colony, as required by M.S.A. § 525.753.

The child thereupon was removed to the school at Faribault and there remained from December 8, 1943, until July 13, 1945, at which time she was released for a two-weeks' visit to the custody of her mother, who, with her husband, Charles Hatton, occupies a farm some six miles from Balaton in Lyon county. Before the expiration of the period authorized, this proceeding was instituted.

On appeal, the state denies the right of petitioners to attack the jurisdiction of the probate court, contending that (1) the original proceeding was in compliance with the statutory requirements then in effect, and the probate court had jurisdiction; (2) the proceeding, being for restoration to capacity, assumes the validity of the original order, which cannot be set aside; and (3) a proceeding for restoration to capacity such as this cannot form the basis for a collateral attack on the original jurisdiction of the probate court.

1. The issues now before this court do not extend to a consideration of the competency or incompetency of the minor. There is substantial evidence in the record to uphold the trial court's finding that she was a retarded mental case, and that for her own welfare commitment to the custody of the state school at Faribault was necessary. Likewise, there is evidence from which it might be concluded that, while she was mentally retarded, her home environment benefited her more than public custody, and that she was not so mentally defective as to require supervision, control, and care for her own and the public welfare, as required by L.1945, c. 490, M.S.A. §§ 525.749, 525.751. We are not concerned with this question at this time. The original jurisdiction of the probate court has been challenged, and that is the only issue here for determination.

2. By virtue of Minn.Const. art. 6, § 7, jurisdiction in guardianship matters is in the probate court. M.S.A. § 525.54 provides that the probate court "may appoint one or two persons * * * as guardians of the person * * * of any person who is a minor, or who because of old age, or imperfection or deterioration of mentality is incompetent to manage his person * * *." It further specifies that "Nothing herein contained shall diminish the power of any court to appoint a guardian to serve or protect the interest of any minor or other person under disability in any proceedings therein, * * *." M.S. A. § 525.752 specifies: "The patient [feeble-minded person] shall be examined at such time and place and upon notice to such persons and served in such manner as the court may determine." This section further provides that the court shall fix the time and place for hearing in such matters and that "ten days' notice by mail shall be given to the director of public institutions, and to such other persons and in such manner as the court may direct."

The state asserts that, since the foregoing statutes do not specify any particular notice either for the minor here involved or for the petitioners, there has been no failure to comply with statutory requirements. This, together with the fact that the parents of the minor involved were present in person, the state contends, gave the court jurisdiction at the time of the original hearing and when its order was subsequently made.

3. It has frequently been held that, although a statute authorizes the appointment of a guardian for incompetents without the necessity of notice or process in connection therewith, nevertheless notice is essential in such proceedings under the due process clauses of both the state constitution, Minn.Const. art. 1 § 7, and the federal constitution, U.S.Const. Amend. XIV, § 1. Thus, in Re Restoration to Capacity of Masters, 216 Minn. 553, 556, 13 N.W.2d 487, 489, 158 A.L.R. 1210, which involved interpretation of a statutory provision similar to § 525.752, we stated:

"* * * such notice must satisfy the constitutional requirement of `due process of law.' This prerequisite to a valid commitment cannot be ignored either by the legislature or by a court, proceeding as the legislature prescribes. State ex rel. Blaisdell v. Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am.St.Rep. 525; Juster Bros., Inc., v. Christgau, 214 Minn. 108, 7 N.W.2d 501; * * *.

"Notice in commitment proceedings is not always practicable where the person sought to be committed is violently and dangerously insane. But those types of insanity or feeble-mindedness which manifest themselves in harmless symptoms lend themselves to the orderly processes of a formal hearing and adjudication; and in such cases the constitutional mandates must be strictly observed by giving the person under inquiry not only adequate notice of the fact of a hearing and the purpose thereof, but also every opportunity to be heard before the order of commitment is issued." (Italics supplied.)

The same result was arrived at in Jasperson v. Jacobson, 224 Minn. 76, 27 N.W.2d 788.

This doctrine is in accordance with the general rule. See, McKinstry v. Dewey, 192 Iowa 753, 185 N.W. 565, 23 A.L.R. 587; Chase v. Hathaway, 14 Mass. 222; Wait v. Maxwell, 22 Mass. 217, 5 Pick. 217, 16 Am.Dec. 391; Hathaway v. Clark, 22 Mass. 490, 5 Pick. 490; McCurry v. Hooper, 12 Ala. 823, 46 Am.Dec. 280; Eslava v. Lepretre, 21 Ala. 504, 56 Am.Dec. 266; Moody v. Bibb, 50 Ala. 245; Molton v. Henderson, 62 Ala. 426; Eddy v. People, 15 Ill. 386; Mason v. Beazley, 10 Ky.Law Rep. 154; Stewart v. Taylor, 111 Ky. 247, 63 S.W. 783; Allis v. Morton, 70 Mass. 63, 4 Gray 63; Hutchins v. Johnson, 12 Conn. 376, 30 Am.Dec. 622; Holman v. Holman, 80 Me. 139, 13 A. 576; Royal Arcanum v. Nicholson, 104 Md. 472, 65 A. 320, 10 Ann.Cas. 213; In re Wellman, 3 Kan.App. 100, 45 P. 726; In re Allen, 82 Vt. 365, 73 A. 1078, 26...