Plympton v. Hall
| Decision Date | 08 September 1893 |
| Docket Number | 8150 |
| Citation | 56 N.W. 351,55 Minn. 22 |
| Parties | George F. Plympton v. William Hall et al |
| Court | Minnesota Supreme Court |
Argued June 21, 1893.
Appeal by defendant, Israel W. Cone, one of the defendants, from an order of the District Court of Hennepin County, Henry G Hicks, J., made December 1, 1892, denying his motion to dismiss the action.
On June 9, 1891, Andrew S. Keyes presented his petition in the District Court, stating that George F. Plympton of Massachusetts was of unsound mind and had there been adjudged a lunatic and had no general or testamentary guardian in this state. That he owned and was entitled to the possession of lot six (6) in block (20) in St. Anthony, now in the City of Minneapolis. That Israel W. Cone, William Hall and Charles L Willard had possession of the lot and were receiving rents for it; that the petitioner was the next friend of the lunatic, and he asked to be appointed his guardian ad litem to bring an action of ejectment to recover possession of the property. He was thereupon appointed and commenced this action in the name of Plympton against the three defendants. They answered, denying plaintiff's title and claimed to own the lot under a sale thereof for taxes. On December 1 1891, they moved the court to dismiss the action on the ground that the court had not acquired jurisdiction of the person or estate of the plaintiff, he being non-resident. The motion was denied, but all proceedings were stayed until a duly authorized guardian of the plaintiff could be appointed by the Probate Court. From that order the defendant Cone appeals.
Order affirmed.
Young & Fish, for appellant.
A guardian ad litem is never appointed except for an infant. 1878 G. S. ch. 66, §§ 30, 31; Clark v Platt, 30 Conn. 282.
Our statutes confer upon the Probate Court, as full jurisdiction in the matter of the estates of insane persons as of minors. Probate Code, §§ 142, 152; State v. Wilcox, 24 Minn. 143. Where probate jurisdiction remains in the courts of chancery, there may be some color for the claim that they have inherent power to appoint special guardians for insane persons, but here such jurisdiction is vested wholly in the Probate Court, and the general guardian which it alone can appoint, is required to appear for and represent his ward in all legal proceedings except in the cases where a special guardian is provided for by statute. (Probate Code, § 148.) Where such is the law, none but the general guardian can sue in behalf of a lunatic. Covington v. Neftzger, 140 Ill. 608; Gustafison v. Ericksdotter, 37 Kan. 670.
The action itself, being wholly unauthorized, conferred no jurisdiction and called no powers of the court into action. Stocking v. Hanson, 35 Minn. 207.
Want of jurisdiction is not waived by appearance and answer. The statute expressly excepts from the effect of the answer as a waiver the objection to the jurisdiction of the court. 1878 G. S. ch. 66, § 95.
To hold that a party appearing as defendant could, by his appearance, give the court jurisdiction over any one named as plaintiff, without his consent or knowledge, is of course wholly inadmissible.
The objection is not to plaintiff's capacity to sue nor to the authority of the attorney. It is the jurisdiction of the court to proceed in an action to which it affirmatively appears that the plaintiff has in no way consented. If the plaintiff is not in court, then nothing is in court, and no order is proper but an order of dismissal. This is not a question of lack of power to sue, but a lack of any suit. The plaintiff is not here. He could not be bound by any judgment against him, for he is not in court.
Howard A. Turner and James I. Best, for respondent.
The defendant, after answering to the merits, cannot raise this question. It comes too late. It should have been done by motion before answering. The answer necessarily concedes that there is a plaintiff properly in court. This precise question was raised and decided adversely to the defendant in Schuek v. Hagar, 24 Minn. 339.
All the authorities hold that an insane person, before inquisition found, may bring an action by a guardian or a next friend. Rock v. Slade, 7 Dowl. 22; Nelson v. Duncombe, 9 Beav. 231; Light v. Light, 25 Beav. 248; Jones v. Lloyd, L. R. 18 Eq. Cas. 265; Dorsheimer v. Roorback, 18 N.J.Eq. 438; Whetstone v. Whetstone, 75 Ala. 495; Newcomb v. Newcomb, 13 Bush 544; Chicago & P. R. Co. v. Munger, 78 Ill. 300; Allen v. Ransom, 44 Mo. 263.
If no suit could be commenced in behalf of an insane person until he conferred the authority, none could be commenced, because such person cannot confer such authority. Such suits, however, may be commenced, and the authority to commence them must be conferred by someone who represents him. After appointment, this authority may be said to be with his committee or guardian; but before any appointment, the authority ex necessitate rei must be in the court in which the action is commenced. Denny v. Denny, 8 Allen 311.
The defendant contends that the Probate Code invests the general guardian with exclusive authority to commence actions; and therefore none can be commenced by any other person. The statute does not purport to do anything of the kind, but it leaves this matter precisely as it existed before the adoption of the statute. The only reference to the subject is found in the last clause of section 148 of the Probate Code, which provides that the guardian shall appear and represent his ward in all legal proceedings unless another person is appointed for that purpose. This does not invest him with such authority, but on the contrary is a clear legislative recognition that the courts possess the power to appoint other persons to represent such wards in legal proceedings. All the plaintiff lacked before the commencement of the suit was legal capacity to sue. This was supplied by the appointment of a guardian ad litem.
OPINION
In this case the plaintiff, an alleged lunatic, appears and sues by guardian ad litem . This appearance by guardian is under the sanction and direction of the court which appointed, as such guardian, on the proper application, a person represented to be the next friend of the lunatic.
Persons incompetent to protect themselves, from age or weakness of mind, are entitled to come under the protection of the court, and proceedings will be instituted under its direction, as was done in this case. Malin v. Malin, 2 Johns. Ch. 238; Denny v. Denny, 8 Allen 313.
A lunatic is not supposed to be able, without the assistance of others, to know what steps may be necessary to protect his estate. Suits in his behalf are usually instituted in his name, but as he is a person incapable, in law, of taking any steps on his own account, he sues by the committee of his estate, if any, or, if none, by his next friend, who is responsible for the conduct of the suit. 1 Daniel, Ch. Pr. § 83; Story, Eq. Pl. § 66.
In Beall v. Smith, L. R. 9 Ch. App. 91, the general rule in chancery is thus stated: Where there is a person of unsound mind, and therefore incapable of...
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