Painter v. Painter

• Decision Date: 01 January 1921
• Citation: 228 S.W. 538,206 Mo.App. 312
• Parties: JOSEPH M. PAINTER, Appellant, v. VIRGINIA PAINTER, Respondent
• Court: Missouri Court of Appeals

228 S.W. 538

206 Mo.App. 312

JOSEPH M. PAINTER, Appellant, v. VIRGINIA PAINTER, Respondent

Court of Appeals of Missouri, Springfield

January 1, 1921

Appeal from Circuit Court of Dade County.--Hon. B. G. Thurman Judge.

AFFIRMED.

Judgment affirmed.

McCammon & McCammon, and C. H. Landrum for appellant.

(1) As illustrating the point that in no case where a suit was brought to annul a decree or judgment has any one but the parties to the original action been made a party to an annulment suit, we cite the following: Robertson v Robertson, 163 S.W. 266, 178, 478; Blass v Blass, 186 S.W. 1094, 194 Mo.App. 624; Dorrance v Dorrance, 148 S.W. 94, 242 Mo. 625; Same case, 165 S.W. 783, 257 Mo. 317. (2) The allegation of the petition is, that defendant was the informant and made the affidavit on which the county court issued its warrant and arrested. plaintiff. An insanity proceeding is a civil or suit. State ex rel. v. Holtcamp, 138 S.W. 521, 235 Mo. 232. And that the one filing or being the proceedings "is a party to it" is held in State v. Dickman, 157 S.W. 1012, 175 Mo.App. 543, where the court said, 157 S.W. 1113: "There are only two questions involved in this case: First, is the proceeding in an inquisition to pass on the mental soundness of the party," a suit pending in any court in this State? Second: Is the informant "any party to such suit so that our statutes applies"? (The case arose upon a notice to take depositions.) That section (Sec. 6384, R. S. 1909) provides: "Any party to a suit pending in any court in this State may obtain the deposition of any witness, to be used in such suit conditionally." "In the many cases in which insanity inquiries have been before our appellate courts, and in the great majority of which it appears that they were contested and the testimony of witnesses produced by the informant as well as by the party proceeded against, heard, there is no intimation to the effect that each party has not a right to produce witnesses. The power to compel attendance of a witness or party before a notary or commissioner and secure testimony is undoubted, as seen in passing, Ex parte Gfeller, 178 Mo. 248, 77 S.W. 552. We hold that the proceeding looking to an inquiry into the sanity of a person is a suit, within our law; that the probate court having ordered the inquiryto proceed on the information of the daughter has determined conclusively for us here the right of the informant to institute that proceeding; that she is a party, to a suit within the meaning of our law and as such can take and preserve testimony relevant to the inquiry by deposition." State v. Dieckman, 157 S.W. 1012, 175 Mo.App. 543; State ex rel. v. Guinotte, 165 S.W. 718, 257 Mo. 1. (3) The county court has no jurisdiction to inquire into the sanity of the plaintiff herein. The act which purported to give the county court jurisdiction to inquire into the sanity of persons without property has been decided by the Supreme Court in a case directly involving its validity, to be unconstitutional, and in the most positive and emphatic language. In Redmond v. Railroad, 126 S.W. 159, 225 Mo. 721, the court, after quoting the constitutional provision, Sec. 34, Art. 6, and the amendment of 1903 to R. S. 1899, sec. 3650, Sec. 474, R. S. 1909, said: By that section, Sec. 34, Art. 6, full jurisdiction is conferred on probate courts to appoint guardians and curators for persons of unsound mind. What the Constitution has given, the General Assembly cannot take or curtail. The Constitution does not limit the jurisdiction of the probate court to cases in which the insane person owns property, but the jurisdiction is over all such persons. The probate court cannot appoint a guardian of an adult person until it has ascertained that he is insane, and jurisdiction to appoint the guardian necessarily carries the jurisdiction to institute and carry through the inquiry as to his mental condition. An insane person needs a guardian of his person even though he has no property, or property interest to be protected. Where jurisdiction is conferred by the Constitution the General Assembly has power to prescribe the procedure in which that jurisdiction is to be exercised, but the proviso aimed to be added to that section by the Act of 1903 is not the prescribing of a procedure but a curtailment of the jurisdiction which the Constitution conferred." (4) In State v. Woodson, 161 Mo. 454, that court said: "In that section (Sec. 1, Art. 6) the Constitution disposes of all the judical power of the State in matters of law and equity and it leaves nothing to be disposed of by the General Assembly." In State v. Ry. Co., 162 S.W. 144, 253 Mo. 642, the court said: "The power of the General Assembly to enact laws is subject in all matters to the limitations of the Constitution of of this State whether they be expressed by prohibitory clauses or by affirmative provisions relating to the matter in hand. Both methods of restriction are equally binding on the law-making powers and no valid law can be enacted by it which contravenes either." In State v. Locker, 181 S.W. 1003, 266 Mo. 243, the court said: "It may be therefore safely asserted as a rule that the Legislature as to the constitutionally recognized courts can neither add to or take from the jurisdiction provided for such courts by the Constitution." In State v. Tincher, 166 S.W. 1031, 258 Mo. 1, the court after expressly approving the Redmond case quotes and approves the utterance of one of the great judges of the State in an earlier day, respecting the constitutionally created courts thus: "In the first place . . . the jurisdiction of this court is defined and limited by the Constitution. It has such powers and jurisdiction as the Constitution has conferred upon it--no more, no less. It cannot shirk any duty imposed upon it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body can invest it with no jurisdiction when it is not given by the Constitution, nor can they deprive it of its appellate jurisdiction. . . . By parity of reasoning it would seem that this rule should apply with equal force to any other constitutional court whose powers are definitely defined as is the case in regard to probate courts, section 34, Art. 6, Con. Mo." In State v. Brasher, 201 S.W. 1153, 200 Mo.App. 127, this court, following the decisions of the Supreme Court, has fully recognized their application to a proceeding such as this. (5) Another question was raised by the defendant--that an appeal from the county court to the circuit court might have been taken, or a writ of error prosecuted; but those remedies were not available at the time this suit was brought and the injury to plaintiff's status and to his reputation, and the damage to him in depriving him of the means of making a living are continuing, and a court of equity is the only place where he can obtain relief. It is also said that plaintiff has been discharged from the asylum and plaintiff is relieved from all burden and responsibility and that the judgment sought to be annulled is satisfied. It is true the incarceration and confinement in a madhouse is over; but the judgment that plaintiff was insane stands on the records of a court apparently valid, still is referred to, still is told to those who might seek his services as a physician--a stigma on his name, a bar to his employment, and will continue as such until by a higher court the judgment is annulled, the bar beaten down, and the stigma blotted out and his status as a man restored. In Warren v. Order etc. of America, 201 S.W. 368, this court ordered restitution to the defendant of money it had paid to the plaintiff voluntarily on a judgment, and cited unanimous precedents therefor. In Colburn v. Yantes, 176 Mo. 670, the Supreme Court rendered a judgment compelling restitution in a similar case.

W. B. Skinner and Mrs. Kathrine Halterman for respondent.

(1) Where a judgment was obtained by due process of law, no defense having been made, or an unavailing defense, such judgment cannot be set aside or vacated by a bill in equity. Wilkerson v. Whiting, 7 Mo. 295; Smith v Sims, 77 Mo. 269; Railroad v. Mirrielees, 182 Mo. 141. (2) But if the judgment has been obtained by fraud, or if the court had no jurisdiction, the rule is otherwise and relief may be had. Orvis v. Elliott, 65 Mo.App. 96; Shertz v. Kirtley, 62 Mo. 417; Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (3) In order to set aside a judgment for fraud, in direct proceedings, however, it must appear that the fraud was practiced in the very act of obtaining the judgment. Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (4) "In each county there shall be a county court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. The court shall consist of one or more judges, not exceeding three, of whom the probate judge may be one, as may be provided by law." Constitution of Missouri, Art. 6, Sec. 36; 1. R. S. 1909, page 98; Adopted in 1875, R. S. 1909, section 3845. (5) County courts have full and complete jurisdiction in the matter of sending such of the insane poor to the State hospitals and asylums as may be entitled to admission thereto. R. S. 1909, section 1411 to 1422, inclusive; Laws of 1911, page 115; Laws of 1919, page 182. (6) County courts are vested with judicial powers and their judgments cannot be collaterally attacked. Constitution of Missouri Article 6, section 1, R. S. 1909, page 85; Benton County v. Morgan, 163 Mo. 661; McKenzie v. Donnell, 151 Mo. 431. (7) An...