McCormick v. Blaine

• Decision Date: 23 October 1931
• Docket Number: No. 20747.,20747.
• Citation: 345 Ill. 461,178 N.E. 195
• Parties: McCORMICK v. BLAINE et al.
• Court: Illinois Supreme Court

345 Ill. 461

178 N.E. 195

McCORMICK

v.BLAINE et al.

No. 20747.

Supreme Court of Illinois.

Oct. 23, 1931.

Suit by Katharine Dexter McCormick, opposed by Anita McCormick Blaine and others, to declare Stanley McCormick to be an incompetent person and to appoint a conservator. The probate court refused to appoint a conservator for the person, and this order was sustained by the circuit court on appeal. The judgment of the circuit court was reversed by the Appellate Court and the cause remanded (260 Ill. App. 36), and defendants appeal on certificate of importance.

Judgment of Appellate Court reversed, and judgment of circuit court affirmed.Appeal from Third Branch Appellate Court, First District, on appeal from Circuit Court, Cook County; Michael Feinberg, Judge.

Tenney, Harding Sherman & Rogers, Miller, Gorham & Wales, and Cassels, Potter & Bentley, all of Chicago (Horace Kent Tenney, of Chicago, Logan Hay, of Springfield and Amos C. Miller, Edwin H. Cassels, Barry Gilbert, and George C. Bunge, all of Chicago, of counsel), for appellants.

Baker, Hostetler, Sidlo & Patterson, of Cleveland, Ohio, and Winston, Strawn & Shaw, of Chicago (Newton D. Baker, of Cleveland, Ohio, Silas H. Strawn, of Chicago, Paul Patterson and Howard F. Burns, both of Cleveland, Ohio, and John C. Slade, of Chicago, of counsel), for appellee.

STONE, C. J.

This cause is here on certificate of importance and appeal allowed by the Appellate Court for the First district. It arises on a petition filed in the probate court of Cook county to declare Stanley McCormick to be an incompetent person and to appoint a conservator for his person and property.

On October 4, 1928, appellants Cyrus H. McCormick and Harold F. McCormick, brothers of Stanley McCormick, filed a petition in the probate court of Cook county alleging that Stanley McCormick was an insane person and incompetent to manage and control his estate, and that he possessed real property in Cook county. The petition prayed that a hearing be had as to the competency of Stanley McCormick, and, if found to be incompetent, that conservators be appointed for his property in this state. Summons was issued and returned not found. Constructive service was had by publication and mailing of notice to Stanley McCormick at Santa Barbara, Cal. Two days later the appellee, Katharine Dexter McCormick, wife of Stanley McCormick, filed in the same court a similar petition, praying that she be appointed conservator of both the person and estate of Stanley McCormick. To this latter petition the brothers of Stanley McCormick filed objections, in which they were joined by their sister, Anita McCormick Blaine, also appellant here. These objections were directed against the appointment of a conservator for the person of Stanley McCormick. The two petitions were heard together. A jury was impaneled, which found Stanley McCormick to be incompetent, and found that he had real estate and personal property in Cook county. The probate court on that verdict granted the prayer of both petitions in so far as they sought the appointment of conservators for the property of Stanley McCormick in Illinois, and appointed the Continental Bank & Trust Company of Chicago, Ill., Merchants' Trust Company of Chicago, Katharine Dexter McCormick, petitioner in the second petition, and Harold F. McCormick, petitioner in the one first filed, as such conservators. The appointment of a conservator for the person of Stanley McCormick was denied on the ground of want of jurisdiction over his person. From this order Katharine Dexter McCormick appealed to the circuit court. That court sustained a motion to dismiss the petition of Katharine Dexter McCormick as to this latter order on the ground of want of jurisdiction over the person of Stanley McCormick. On appeal to the Appellate Court, the judgment of the circuit court was reversed and the cause remanded for further proceedings, and, as we have noted, the cause is here on certificate of importance.

The question involved in the case is whether the probate court of Cook county had jurisdiction to appoint a conservator of the person of Stanley McCormick, who, it is conceded, has lived in Santa Barbara, Cal., and has not left that state since 1908. No question of fact is involved. Stanley McCormick, now about fifty-five years of age, was born in Chicago, where he resided until his marriage to the appellee, Katharine Dexter, in 1904. In 1906, while visiting in Massachusetts with his wife, he became mentally deranged. He was kept in a hospital in Massachusetts until 1908, when he was removed to California. It appears that in 1909 conservators, or guardians of his person as they are there styled, were appointed by a California court. He has since lived on property belonging to him in Santa Barbara, Cal.

The question of the jurisdiction of the courts of this state to appoint a conservator of the person of an alleged incompetent citizen of the state residing outside its borders is one on which this court has not directly passed. The probate and circuit courts held that a proceeding to appoint a conservator for the person is one in personam, and that jurisdiction may not be taken by the courts of this state, by constructive service, to enter a personal judgment against one not within the state, though he be domiciled in this State. The Appellate Court held that the proceedings were in rem, and that, whether such be so or not, a state has jurisdiction, through constructive service, to enter a judgment of the character here involved against its citizens domiciled in this state but having a residence outside the state. The contentions of the appellants here are that a proceeding arising on a petition to declare one an incompetent and appoint a conservator for his person is, so far as jurisdiction is concerned, a proceeding in personam; that the statutesof this state have not authorized personal judgments based on constructive service by publication and mailing of notice; and that, if such construction were to be placed upon the statutes, they would be invalid as contravening the due process clauses of the state and Federal Constitutions. Appellants also argue that, the California court having taken jurisdiction of the person of Stanley McCormick by appointing guardians for him there, the principles of full faith and credit require that their judgment be recognized by the courts of this state. Appellee argues that the action is one in rem, and that, whether this is so or not, the Illinois courts have jurisdiction of the person of Stanley McCormick, for the reason that, though absent from the state, he is a domiciliary of Illinois, and jurisdiction to enter personal judgment against an absent domiciliary exists in the state, and is authorized by the statutes of this state.

The first question here presented is whether this is a proceeding in personam or in rem. A judgment in rem may be briefly defined as one founded on a proceeding instituted, not primarily against the person, but against or upon some thing or subject-matter the status or condition of which is to be determined. Such judgment is one affecting the status of the res. A proceeding in personam is a proceeding against the person. It involves his personal rights, and may involve his right to specific property or the exercise of the ownership of such property, but it is based on jurisdiction of his person. Woodruff v. Taylor, 20 Vt. 65;Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914;Austin v. Royal League, 316 Ill. 188, 147 N. E. 106. The cases in this country considering the question whether a proceeding to declare one to be incompetent and appoint a conservator for his person is an action in personam or in rem are but few. In Raher v. Raher, 150 Iowa, 511, 129 N. W. 494,35 L. R. A. (N. S.) 292, Ann. Cas. 1912D, 680;Grinbaum v. Superior Court, 192 Cal. 566, 221 P. 651; and In re Wilson, 9 Del. Ch. 332, 82 A. 695, a proceeding to declare one to be of unsound mind and appoint a guardian for his person was held in each case to be in personam. While the Iowa and California decisions were by divided courts on the question of jurisdiction, there seemed to be no disagreement in the holding here referred to. In Chase v. Hathaway, 14 Mass. 222, while the fundamental distinction between actions in personam and in rem is not noted, the observations of the court are pertinent to that distinction. The appeal arose on a lunacy proceeding. No notice was given to the alleged incompetent, and the court there said: ‘It is a fundamental principle of justice, essential to every free government, that every citizen shall be maintained in the enjoyment of his liberty and property, unless he has forfeited them by the standing laws of the community, and has had opportunity to answer such charges as, according to those laws, will justify a forfeiture or suspension of them. And whenever the legislature has provided that, on account of crime or misfortune, the public safety or convenience demands a suspension of these essential rights of the individual, and has provided a judicial process, by which the fact shall be ascertained, it is to be understood as required that the tribunal, to which is committed the duty of inquiring and determining, shall give opportunity to the subject to be heard in support of his innocence or his capacity. * * * Indeed, in would seem strange that the whole estate of a citizen might be taken from him, and committed to others, and his personal liberty be restrained, upon an ex parte proceeding, without any notice of the pendency of a complaint, upon a suggestion of lunacy or other defect of understanding; while the depriving him of the minutest portion of that property, or the slightest detention of his person, would be illegal upon a charge of crime, or of a breach of a civil contract, unless all the formalities of a trial were secured to him by the forms of process and the regular execution of it.’

In Supreme Council of R....