Linderholm v. State

• Decision Date: 10 July 1937
• Docket Number: 33307.
• Citation: 146 Kan. 224,69 P.2d 689
• Parties: LINDERHOLM v. STATE.
• Court: Kansas Supreme Court

69 P.2d 689

146 Kan. 224

LINDERHOLM v. STATE.

No. 33307.

Supreme Court of Kansas

July 10, 1937

Syllabus by the Court.

The state cannot be sued in its own courts except where consent has been given by act of Legislature.

A petition filed to determine regularity of insanity proceedings, purporting to be under statute authorizing vacation of judgment of insanity, held an attempt to sue the state without its consent and hence not maintainable (Gen.St.1935, 60-3007, 76-1203).

1. The state cannot be sued in its own courts except where consent has been given by an act of the Legislature.

2. Allegations of a petition filed to determine regularity of proceedings in insanity examined, and held to constitute an attempt to sue the state.

Appeal from District Court, McPherson County; John G. Somers, Judge.

Action to vacate a judgment of insanity by Justus B. Linderholm against the State of Kansas. From an order dismissing the action, plaintiff appeals.

Order sustained.

Justus B. Linderholm, pro se.

C. V Beck, Atty. Gen., J. S. Parker, Asst. Atty. Gen., and Archie T. MacDonald, Co. Atty., of McPherson, for the State.

THIELE Justice.

This action was brought to vacate a judgment of insanity. From an order of the trial court dismissing the action, plaintiff appeals.

In a proceeding commenced in the probate court of McPherson county, Justus B. Linderholm was adjudged to be insane on December 17, 1908. On appeal a similar finding was made in the district court on March 20, 1909. Thereafter an appeal was taken to this court, and the judgment was affirmed. State v. Linderholm, 84 Kan. 603, 114 P. 857. A rehearing was denied. State v. Linderholm, 84 Kan 892, 114 P. 857. Thereafter there was a series of appeals to this court involving the regularity of the lunacy proceedings against Linderholm and results flowing therefrom. See State v. Linderholm, 90 Kan. 489, 135 P. 564; Linderholm v. Ekblad, 92 Kan. 9, 139 P. 1015; State v. Linderholm, 95 Kan. 669, 149 P. 427; Linderholm v. Kansas Conference, 97 Kan. 212, 155 P 24; In re Linderholm, 101 Kan. 18, 165 P. 830; In re Linderholm, 102 Kan. 3, 169 P. 555; Linderholm v. Walker, 102 Kan. 684, 171 P. 603. The last appeal was disposed of in March, 1918. Long after the above appeals were determined, Linderholm instituted proceedings in the probate court to be declared to have been restored to his right mind and on January 25, 1934, a finding and order to that effect was made.

On January 25, 1936, Linderholm brought an action by filing a petition containing six so-called causes of action, and to which was later added three more so-called causes of action. The gist of all was an effort to set aside all of the proceedings in lunacy. The petitioner is not a lawyer and his petition contains more of argument than of statement of facts, but the purport is that his mental development was arrested by disease prior to the age of puberty, and because thereof he was not insane, citing G.S.1935, 76-1203, and therefore he was never lawfully found to be insane.

The abstract does not disclose in what manner the plaintiff procured any service of summons, but the county attorney appeared specially and moved the court to dismiss the action on the ground that it was in substance and effect an action against the state of Kansas, and that the trial court had no jurisdiction. This motion was sustained and the plaintiff appeals to this court.

Appellant does not contend there is any statute that permits an action of this type against the state. If there is no such statute, then the action will not lie. See Asbell v. State, 60 Kan. 51, 55 P. 338, State v. Appleton, 73 Kan. 160, 84 P. 753, and Purity Oats Co. v. State, 125 Kan. 558, 264 P. 740.

Appellant contends, however, that what he filed was an application...