Kleinschmidt v. Hoctor

• Decision Date: 25 October 1950
• Docket Number: No. 42313,42313
• Citation: 233 S.W.2d 649,361 Mo. 29
• Parties: KIEINSCHMIDT v. HOCTOR.
• Court: Missouri Supreme Court

Page 649

233 S.W.2d 649

361 Mo. 29

KIEINSCHMIDT v. HOCTOR.

No. 42313.

Supreme Court of Missouri, en Banc.

Oct. 25, 1950.

Hubert E. Lay, Houston, for petitioner.

Gordon Weir, Asst. Atty. Gen., for respondent.

ELLISON, Judge.

This is a habeas corpus proceeding brought in this court by Robert E. Kleinschmidt to obtain his release from State Hospital No. 4 at Farmington where he is detained as an insane person. He was adjudged insane by the Probate Court of Jefferson County sitting as a jury at an inquisition held on the morning of April 14, 1950, between 9 and 10 o'clock. He had been served with notice of the proceeding less than two hours earlier. The sole contention of petitioner's counsel is that this short notice was insufficient and that the adjudication was therefore void and a denial of due process.

The first question is--under which statutes of this State was the proceeding conducted? We have two sets of statutes governing such inquisitions. Secs. 447, 449 and 451, R.S. 1939, Mo.R.S.A. cover cases where the alleged incompetent is the owner of property, and the issue is whether he is a person of unsound mind and incapable of managing his affairs. If such finding be made a guardian of his person and estate is appointed by the probate court.

On the other hand, if the alleged incompetent is a poor person without sufficient estate to support him at a state hospital for the insane, and the effort is to have him supported at public expense, the inquisition is made under Secs. 9335 and 9336, Laws Mo. 1945, p. 908. But under Secs. 9321 and 9347 of this group of statutes any insane person may be admitted to the state hospitals as a pay patient if it be found he has sufficient estate to support and maintain him thereat.

Under either group of the foregoing statutes a verified 'information' or 'statement' must be filed by the petitioner, and under the second group the statement must allege that the incompetent is a resident of the county and insane; that his insanity is of less than _____ year's duration; that he has not sufficient estate to support him at a state hospital for the insane; that he (is or is not) so deranged as to endanger himself or others and (will or will not) be dangerous to the safety of the community by being at large; that he (is or is not) now being confined or restrained; and that the foregoing facts can be proved by (naming at least two persons one of whom shall be a reputable physician.)

The verified information or statement filed in this case was as follows (the caption citing Sec. 9335, supra):

'The undersigned citizens residing in the County and State aforesaid, on their oaths, according to their best information and belief state: That Robert E. Kleinschmidt, a resident of the County and State aforesaid, is insane, that his insanity is less than a weeks duration; the said Robert E. Kleinschmidt is possessed of an estate but is incapable of managing his own affairs; that the said Robert E. Kleinschmidt is so deranged as to endanger himself or others and will be dangerous to the safety of the community by being at large and that he is not now being confined or restrained; and that the foregoing facts can be proved by Dr. George Hopson, Adolph Hurtgen, Frank Dietrich and Harold Hurd.

'Thereas Kleinschmidt

'Pearl Kleinschmidt Bess Hurtgen

'(Seal)

'Dated this 13th day of April, 1949. Subscribed and sworn to before me this 13th day of April, 1949.

'John H. Reppy'

As will be seen this information did not literally comply with either Sec. 447 in the first group of statutes or Sec. 9335 in the second group. It did recite that the incompetent possessed an estate and was incapable of managing his affairs, as required by Sec. 447, supra, but did not request the appointment of a guardian as contemplated by Sec. 451. And on the other hand it omitted an allegation that the incompetent's estate was insufficient to support him in a state hospital for the insane, as required by Sec. 9335. But otherwise it closely followed that section and alleged the incompetent was dangerous to himself and others, and that he was not then confined or restrained. We think the insanity proceeding here involved was prosecuted under the second group of statutes.

The order made by the Probate Court at said hearing on April 14, after preliminary recitals concerning the filing and contents of the information, made a finding that the incompetent had an estate sufficient to support him at the State Hospital, but upon the recommendation of J. W. Thurman, Prosecuting Attorney for Jefferson County, was to be sent there as a county patient; and then continued:

'The court doth further find that after the filing of said information due and legal notice was served upon said alleged insane person that this cause would be heard at the time as is shown by the Sheriff's return filed herein, and that said alleged insane person is represented in this Court at this time by a regular practicing attorney of the State of Missouri, J. W. Thurman.

'And now all the matters and things being submitted to the court upon the pleadings and evidence adduced, the court doth find that the facts alleged and set out in said information have been established by four good witnesses, one of whom is a respectable practicing physician, and the court doth therefore find that he said Robert E. Kleinschmidt is insane, indigent, and a proper person to be sent to Hospital No. 4, as a county patient. It is therefore ordered by the court that said Robert E. Kleinschmidt be sent to Hospital No. 4, at Farmington, Missouri, to undergo treatment thereat as a county patient, and that the clerk of this court make out and transmit to the Superintendent of said Hospital a certified copy of this order with the request that the said Robert E. Kleinschmidt be admitted to said hospital.'

On the same date apparently, upon the presentation of a verified petition of Pearl E. Kleinschmidt who had been appointed guardian of the person and estate of Robert E. Kleinschmidt, the Probate Court made another order in the nature of a warrant, as required by Sec. 9339, Laws Mo.1945, p. 910, directing the sheriff to take the incompetent into custody and deliver him to State Hospital No. 4 at Farmington for medical treatment as a county patient until his guardian could make the necessary arrangements to meet the expenses incidental to his confinement at said hospital as a private patient, said guardian then to refund to Jefferson County the money theretofore expended by the county during the incompetent's confinement as a county patient, this part of the order being made under Sec. 9347, Laws Mo.1945, p. 912.

We make the foregoing recitals only as bearing on the question whether the two hour notice of the insanity inquisition served on the incompetent was reasonably sufficient. The proceeding is not assailed on any other ground. The contention of petitioner's counsel that the notice was insufficient is based on Sec. 449, supra, dealing with cases where the alleged incompetent is a property owner; also under Sec. 9336, supra, where the incompetent is insolvent; and Sec. 912, R.S.1939, MoR.S.A. in the Civil Code dealing with notices in general.

Sec. 449, supra, provides written notice of the nature, time and place of the hearing shall be served on the incompetent 'a reasonable time before the date' thereof, and that the incompetent is entitled to be present and assisted by counsel, and if he have no attorney the Probate Court shall appoint one to represent him--which was done in this case.

Sec. 9336, supra, is exactly the same, except that it further provides if the alleged incompetent is 'so deranged as to endanger himself or others or would be dangerous to the safety of the community by being at large and is not being confined or restrained, the Judge or Clerk of the Probate Court may issue a warrant authorizing the sheriff to apprehend such alleged insane person and confine him or her in some suitable place for such time as may be necessary to carry to a determination the proceedings to inquire into the condition of the said alleged insane person * * *.' The verified information in this case contained these allegations, but the Probate Court did not issue a preliminary warrant authorizing the detention of the alleged incompetent pending the hearing. However it is undisputed that he was not present and came within the statutory description as respects the violent nature of his insanity.

Sec. 912, supra, in the Code of Civil Procedure provides that 'Notices shall, unless a different time is prescribed by law or the practice of the court, be given at least five days before the time appointed for the hearing of the motion, pleading or other proceeding'.

With respect to the mental condition of the incompetent and the course of the proceedings in the Probate Court, the testimony in this court was that the violence of his insanity increased for several days before the inquisition. He lived on a street in Hillsboro between his mother's home on the one side and his sister's on the other. He went from house to house, giving vent to outbursts of temper. The situation became so acute that the information was filed in the Probate Court about 8 o'clock on the night of April 13, and a notice of the inquisition to be held the next day was delivered to a sheriff that night for service on the incompetent. But upon request of the family service thereof was deferred until the next morning, and guards were set out to watch him during the night. Nevertheless he was up and about, ringing a neighborhood church bell twice, dragging water hose from the church into the street, and otherwise making the night hideous.

Early the next morning the notice was served on him but he refused to accept it. Officers took him to the Probate Court but detained him in another room for fear he would interrupt the proceeding. He was represented by the prosecuting attorney as counsel appointed by the court...