Shafer v. Shafer

• Decision Date: 10 March 1914
• Docket Number: 21,821
• Citation: 104 N.E. 507,181 Ind. 244
• Parties: Shafer et al. v. Shafer
• Court: Indiana Supreme Court

104 N.E. 507

181 Ind. 244

Shafer et al. v. Shafer

No. 21,821

Supreme Court of Indiana

March 10, 1914

From Miami Circuit Court; Joseph N. Tillett, Judge.

Proceeding by Sarah Shafer against Henrietta Shafer to have William H Shafer adjudged of sound mind and capable of managing his estate, in which, on leave of court, William H. Shafer filed complaint to set aside the judgment by which he was adjudged a person of unsound mind. From a judgment for defendant, this appeal is prosecuted.

Reversed as to Sarah Shafer, and affirmed as to William H Shafer.

Robert J. Loveland, Jabez T. Cox and Claude Y. Andrews, for appellants.

David E. Rhodes, John F. Lawrence, Charles A. Cole and Albert H Cole, for appellee.

OPINION

Morris, C. J.

William H. Shafer, one of the appellants, was committed to Long Cliffe Insane Hospital, in June, 1906. § 3691 et seq. Burns 1908, § 2842 R. S. 1881. While undergoing treatment there, in February, 1907, on petition of his wife, appellee Henrietta Shafer, he was, by the Miami Circuit Court, adjudged of unsound mind, and incapable of managing his estate, and appellee was appointed his guardian. §§ 3101, 3102 Burns 1908, Acts 1895 p. 205. He was released from the hospital, on parole in April, 1907, and in the following October was finally discharged. Since his parole he has resided with his mother on a farm adjoining his own. In September, 1909, his mother, appellant Sarah Shafer, commenced this proceeding to have him adjudged a person of sound mind and capable of managing his estate. While the above petition was pending, appellant William H. Shafer, in January, 1910, on leave of court, filed in said proceeding, what his counsel terms a complaint in equity to vacate, for alleged fraud, the original judgment declaring him of unsound mind and incapable of managing his estate. In this complaint, he alleges among other things that he is and always was of sound mind and capable of managing his estate; that he never had any notice or knowledge of the proceeding by his wife until after the court adjudged him a fit subject for a guardian; that in said proceeding a summons was issued, and served on the superintendent of the hospital, where he was in custody, pursuant to the provisions of § 318 Burns 1908, § 315 R. S. 1881, but that he had no knowledge of such issuance and service until after the judgment was rendered; that said statute does not authorize such substituted service, in such proceeding, because the latter is not a civil action; that if it is a civil action, the statute is void because in conflict with §§ 1, 12, 20, 21, 23, Art. 1, of the Constitution of Indiana, and the 14th amendment of the Federal Constitution. A copy of the record, in the proceeding by his wife, showing the issuance of summons for him and service thereof on the hospital superintendent, is set out in the complaint. No fact is averred to excuse the delay in instituting his action.

No motion was made to separate the two causes of action. The court sustained appellee's demurrer for want of facts, and appellant contends that this ruling was erroneous.

If it be conceded that the provision for substituted service, found in § 318 Burns, supra, applies only to civil actions, it does not follow that such service is insufficient here. A guardianship proceeding, under § 3101 Burns 1908, Acts 1895 p. 205, is, at least as relating to the issuance and service of process, since the amendment of 1895, governed by the civil code. Berry v. Berry (1897), 147 Ind. 176, 46 N.E. 470. Should it be conceded that the substituted service provision of § 318, supra, is unconstitutional, still the judgment was not void on its face because it does not affirmatively show that appellant was not served with personal notice in addition to the substituted service. The complaint alleges no fraud on the part of the petitioner Henrietta Shafer, relating to the service of process, and for that reason alone the complaint is insufficient. Miedreich v. Lauenstein (1909), 172 Ind. 140, 86 N.E. 963, 87 N.E. 1029.

Where there is a full and adequate remedy at law, equity will not interfere. Appellant, William H. Shafer, had a full and adequate remedy by appeal or complaint to review the judgment, if the service of process was unlawful. §§ 671, 645 Burns 1908, §§ 632, 615 R. S. 1881. Neither will equity interfere where the complainant has been guilty of laches. The complaint here merely avers that appellant had no knowledge of the proceeding until after the judgment was entered. It must be presumed that he had such knowledge immediately thereafter. For a period of about three years appellant stood by and watched the guardian manage and sell his personal property, and possibly sell a portion of his real estate, for his support. It would be unconscionable to condone such delay, where the result might embarrass or injure innocent purchasers. Jones v. Crowell (1895), 143 Ind. 218, 42 N.E. 612; Nicholson v. Nicholson (1887), 113 Ind. 131, 15 N.E. 223; Hollinger v. Reeme (1894), 138 Ind. 363, 36 N.E. 1114, 24 L. R. A. 46, 46 Am. St. 402; Tereba v. Standard Cabinet Mfg. Co. (1903), 32 Ind.App. 9, 68 N.E. 1033. There is no necessity here to consider the constitutional objections urged. Such questions are not considered by courts except in cases of imperative necessity. There was no error in sustaining the demurrer.

The cause of appellant, Sarah Shafer, was tried by a jury which returned a verdict finding that William H. Shafer is a person of unsound mind and incapable of managing his estate. Error is here assigned in the overruling of her motion for a new trial.

Appellee has moved to dismiss her appeal, because, as contended, this is not a civil action and the statute does not expressly provide for an appeal by the petitioner. In support of her position, appellee cites Galbreath v. Black (1883), 89 Ind. 300, which held that such a proceeding was not a civil action within the meaning of our civil code, but on the contrary was a special ex parte proceeding. Since then, the statute (§ 2545 R. S. 1881) was so amended in 1895 (§ 3101 Burns 1908, Acts 1895 p. 205) as to provide that the "issue shall be tried as the issues in civil actions are tried." Subsequently, in Berry v. Berry (1897), 147 Ind. 176, 46 N.E. 470, this court held that such a proceeding is not ex parte, but an adversary one, and is subject to the provisions of the civil code in relation to process and change of venue, and that the code procedure applies in the absence of other provision. The statute here does not forbid an appeal, and we are of the opinion that § 628 of our civil code (§ 671 Burns 1908, § 632 R. S. 1881, Acts 1881 p. 352) applies to such proceedings as this, and permits an appeal by the petitioner.

The motion to dismiss is overruled.

Appellee's requested instruction No. 12, given to the jury, reads as follows: "No. 12. I further instruct you that if a person is of unsound mind within the meaning of the law, he is then incapable of transacting business, and so long as such unsoundness of mind continues he should be kept under guardianship. * * * So if you find from the evidence that ...