Martin v. Motsinger

• Decision Date: 08 March 1892
• Citation: 130 Ind. 555,30 N.E. 523
• Parties: MARTIN v. MOTSINGER.
• Court: Indiana Supreme Court

130 Ind. 555

30 N.E. 523

MARTIN

v.MOTSINGER.

Supreme Court of Indiana.

March 8, 1892.

Appeal from circuit court court, Washington county; S. B. VOYLES, Judge.

Proceedings instituted by J. R. Motsinger to have Elizabeth Martin adjudged of unsound mind. From the judgment of the circuit court, adjudging her of unsound mind, defendant appeals. Affirmed.

Alspaugh & Lawler, for appellant. Mitchell & Mitchell, for appellee.

MCBRIDE, J.

This was a proceeding under the statute to have the appellant adjudged a person of unsound mind, and incapable of managing her estate, and for the appointment of a guardian of her person and estate. No notice was issued or served upon her of the pendency of the proceeding, and she was not present in court at any time. The statement was filed December 2, 1890, and on the 15th day of December, 1890, the clerk filed an answer in proper form, as required by statute. On the same day the cause was called for trial, whereupon the attorneys who represent the appellant in this court appeared in her behalf, and with them also appeared the prosecuting attorney by his deputy. They objected to proceeding in the cause, for the reason that she had not been personally notified of the proceeding, or served with process, and had had no time for consultation with her attorneys. The court withheld its ruling upon the objection, and caused a jury to be impaneled and sworn to try the cause, and then required the petitioner to submit proof showing why the appellant was not produced in court. To this end witnesses were called and examined, and the court, upon their testimony, found that she could not be produced in court by reason of physical infirmities and extreme old age. The objection to proceeding was overruled, and duly excepted to, and the trial proceeded. The jury found that she was of unsound mind, and incapable of managing her estate. A motion for a new trial was overruled, and the court rendered judgment on the verdict, and appointed a guardian. The errors assigned are: (1) Impaneling a jury to try the cause, over the objection made by appellant's counsel. (2) Forcing the cause to trial in appellant's absence, and without notice to her, and in refusing to her time to consult counsel and prepare for trial. (3) Overruling motion for a new trial. (4) The court had no jurisdiction of the person of the appellant. (5) The court had no jurisdiction over the subject-matter of the proceeding.

The first and second errors are not well assigned. If the court erred as indicated, the question should have been brought into the record by the motion for a new trial, as errors of law occurring at the trial, etc. It is due to the lower court that errors of the character alleged be pointed out there, and opportunity be given it to correct its own errors. State v. Swarts, 9 Ind. 221.

The fifth alleged error may be disposed of with brief mention. The subject-matter of the proceeding was the question of the appellant's mental unsoundness, and her capacity to manage her estate. Of cases of this character the circuit court has exclusive jurisdiction. Jurisdiction of the subject-matter does not mean jurisdiction of the given case, but of the class of cases to which it belongs. The court plainly had jurisdiction of the subject-matter of the proceeding. Had the court jurisdiction of the person of the appellant and of the case? Jurisdictional questions thus raised must be determined from the face of the record. Work, Pr. & Pl. § 1085. The appellant insists that jurisdiction of her person could only be acquired by notice, and the record, showing affirmatively that there was no notice, affirmatively shows want of jurisdiction. The statute providing for proceedings of this character does not, in terms, require notice, and the proceedings may be regular and valid without the service of any notice upon the party. Hutts v. Hutts, 62 Ind. 214;Nyce v. Hamilton, 90 Ind. 417. The statute provides that when a sufficient statement has been filed relating to an inhabitant of the county, the court “shall cause such person to be produced in court.” Section 2545, Rev. St. 1881. It is, however, provided by section 2547, Id., that, “if the court shall be satisfied that such person alleged to be of unsound mind cannot, without injury to his health, be produced in court, such personal appearance may be dispensed with.” Of the requirement for the production of the party in court, this court, in the case of Fiscus v. Turner, 125 Ind. 46, 24 N. E. Rep. 662, said: “We think the object sought to be attained by the enactment of this section was the prevention of frauds in procuring verdicts and judgments of insanity without an actual opportunity to the defendant of being heard. For this reason the law requires that the party charged with being insane shall, if possible, be produced in open court, in order that he may hear and have actual knowledge of what is being done, and may meet the parties face to face. As the party charged in such a case may be deprived of his property and of his liberty, it was doubtless thought by the legislature that it was as important that he should be actually present as it would be if he was charged with a criminal offense.” Being present, it is immaterial whether he was or was not served with notice, or was produced by order of the...