Shanklin v. Boyce

• Citation: 204 S.W. 187,275 Mo. 5
• Parties: NATHANIEL SHANKLIN, Appellant, v. RICHARD E. BOYCE et al
• Decision Date: 04 June 1918
• Court: United States State Supreme Court of Missouri

204 S.W. 187

275 Mo. 5

NATHANIEL SHANKLIN, Appellant, v. RICHARD E. BOYCE et al

Supreme Court of Missouri, First Division

June 4, 1918

Appeal from Grundy Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.

Reversed and remanded.

O. M Shanklin, John W. Bingham, J. D. Allen, J. M. Davis & Son and Hubbell Bros. for appellant.

(1) While plaintiff was insane, confined in a hospital in St Louis, the probate court conducted an inquisition of insanity concerning him, and appointed a guardian of his person and estate, without notice to him, without his having any knowledge of it. Plaintiff contends that this original insanity inquisition is wholly void in law, for want of notice to him. Hunt v. Searcy, 167 Mo. 158; Bank v. Shanklin, 174 Mo.App. 642; In re Lambert, 66 P. 851, 134 Cal. 626; Wilcox v. Phillips, 260 Mo 664; Wheeler v. State, 32 Am. Rep. 372, 34 Ohio St. 394; In re Letcher, 269 Mo. 148; Hovey v. Elliott, 167 U.S. 409; McCurry v. Hooper, 46 Am. Dec. 280, 12 Ala. 823; Evans v. Johnson, 45 Am. St. 912, 39 W.Va. 299; Walters v. McKinnis, 221 F. 746; Cooley, Const. Lim. (7 Ed.) p. 581; Martin v. White, 146 F. 461; Stewart v. Taylor, 63 S.W. 783, 23 Ky. L. Rep. 577, 182 U.S. 427; Chaloner v. Sherman, 242 U.S. 455; State ex rel. v. Duncan, 195 Mo.App. 541; State ex rel. v. Guinotte, 257 Mo. 1; Smoot v. Judd, 184 Mo. 508; McGee v. Hayes, 59 P. 767, 127 Cal. 336; Hutchins v. Johnson, 30 Am. Dec. 622, 12 Conn. 376; 10 Am. & Eng. Ann. Cas., p. 213; 16 Am. & Eng. Ency. Law (2 Ed.) p. 567. (2) Caveat emptor applies to any judicial sale. For a stronger reason it applies to the sale of the land of an insane person in ward, by his alleged guardian -- and applies more strongly to this particular case, being one in which the vendee made an exchange or trade, in substance -- instead of making a purchase for money. 21 Cyc. 145, 146; Stone v. Railroad, 261 Mo. 61; Estes v. Alexander, 90 Mo. 453; 17 Am. & Eng. Ency. Law (2 Ed.), p. 1010; Union Trading Co. v. Drach, 146 P. 767; Frost v. Atwood, 16 Am. St. 560, 73 Mich. 67; Buchanan v. Edmisten, 95 N.W. 620. (3) The inquisition of insanity is subject to collateral attack because it is void for want of notice. Dutcher v. Hill, 29 Mo. 271; Webster v. Reid, 11 How. (U.S.) 437; Hunt v. Searcy, 167 Mo. 158; Evans v. Johnson, 23 L. R. A. 737. (4) The trial judge, sitting as a chancellor in equity, erred in holding that plaintiff is not entitled to recover "in this form of action." Houtz v. Hellman, 228 Mo. 635. (5) If the trial judge was correct in holding that the form of action of the plaintiff is defective and illegal, then, the trial judge should have dismissed the plaintiff's suit, only -- should not have rendered judgment against the plaintiff on the merits. Humphreys v. Atlantic Milling Co., 98 Mo. 542; Barnett v. Smart, 158 Mo. 167; Lacassagne v. Chapuis, 144 U.S. 119.

J. W. Peery and A. G. Knight for respondents.

(1) In Hunt v. Searcy, 167 Mo. 158, the court held Sec 476, R. S. 1909, to be unconstitutional, but said case fails to recognize fundamental principles later recognized by this court in State ex rel. v. McQuillin, 151 S.W. 446; Whittelsey v. Conniff, 266 Mo. 567; State ex rel. Paxton v. Guinotte, 257 Mo. 1, and previously recognized by this court in Dutcher v. Hill, 29 Mo. 271; In the Matter of Marquis, 85 Mo. 615; In the Matter of Crouse, 140 Mo.App. 545. Secs. 482, 519 and 520, R. S. 1909, constitute a scheme and mode of procedure for the adjudication of insanity that is perfectly constitutional. This scheme has existed in the statute laws of this State from our admission into the Union to the present hour. This scheme in fact copies after and is closely analogous to the procedure of the common law. From the days of the Great Charter until the Lunacy Regulation Act of 1853, notice of an inquisition was not necessary, and it is within the competency of a State, by its legislation, to dispense with the same, providing the unfortunate may at any time demand and receive a trial under some provision of the statute. The decrees of probate courts adjudging persons to be of unsound mind, are not like ordinary judgments. They are not final, and are not to be treated as final judgments. They remain in fieri, like a cause pending, and may be reopened and set aside at any subsequent term of the court, whenever the insane person shall be restored to his right mind. The fundamental errors in Hunt v. Searcy consist in treating these judgments and applying the same rules and tests to them as are applied to ordinary judgments. 10 Am. & Eng. Ency. Law 287; 3 Words & Phrases, 2227. The term "due process of law" is almost universally held to be synonymous with "law of the land" and is therefore lineally decended from Magna Charta. 3 Words & Phrases, 2228; 10 Am. & Eng. Ency. Law 290; 8 Cyc. 1083; Minor v. Happersett, 21 Wall. (U.S.) 162; Weimer v. Bunbury, 30 Mich. 201; Wulzen v. San Francisco, 101 Cal. 15, 40 Am. St. 17; Minor v. Happersett, 21 Wall. 162; Ballard v. Hunter, 204 U.S. 241; Attorney General v. Jochim, 99 Mich. 358, 41 Am. St. 606. "Formerly, under the English practice in lunacy, the proceedings upon the writ de lunatico inquirendo were ex parte, the alleged lunatic not being entitled as of right to notice thereof, since the proceedings were had for the information of the court, which might refuse to issue a commission, or might supersede a commission once issued, so that the right of the party to have the question of his insanity passed upon by a jury of the country in a court of law was to be exercised, if at all, upon a traverse of the inquisition. Although the party's right to traverse the finding of the inquisition appears to have been doubted or reluctantly admitted in some of the earlier cases, it was clearly established in the leading case of Cumming in re in which St Leonards, C., reviews the authorities in an elaborate opinion." 1 De G. M. & G. 537; 21 L. J. (N. S.) ch. 753; Jur. 483; Bridge, in re, Cr. & Ph. 338; Cumming, in re, the Chancellor St. 2 & 3 Edw. VI., ch. 8, sec. 6 (See also remarks of Eldon, C., in Ward ex parte, 6 Ves. 579; Staunton on the King's Prerogative, cap. 20, Traverse, p. 68.); Fust in re, 1 Cox 418; Wragg at ex parte, Ferne ex parte, 5 Ves. 450, 832; Sherwood v. Sanderson, 19 Ves. 280; Neville in re, Crawf. & Dix. Abr. Notes 55; Bridge, in re, Cr. & Ph. 338. This continued to be the settled law of England until the enactment of the Lunacy Regulation Act in 1853, which provided for notice to the alleged incompetent, if he resided in the jurisdiction of the court, and which limited the absolute right of traverse to a period of three months after the finding of the inquisition. 16 & 17 Vic., ch. 70, secs. 148, 149; Buswell on Insanity, sec. 71; Woerner on Guardianship, 391; 22 Cyc. 1124, 1131; 10 Pl. & Prac. 1202. It therefore clearly appears that by the common law of England, prior to the Lunacy Regulation Act of 1853, inquisitions of insanity were regarded purely as proceedings ex parte; that notice to the alleged incompetent, though sometimes given, was never required, and that the findings of such inquisitions were never conclusive upon him, but were always open to attack. Buswell on Insanity, p. 33, sec. 23; Woerner on Guardianship, p. 382. It must be conceded, therefore, that if the subject of an inquisition of insanity ever had an absolute statutory right to notice of the proceedings, that right must be derived from the provisions of the Statute of 1835, requiring that he be brought before the court. In Hunt v. Searcy, 167 Mo. l. c. 177, Marshall, J., appears to have been of the opinion that a compliance with this provision of the statute would have been the legal equivalent of notice; but this view involves a fundamental misconception of the purpose and effect of the statute. It is inconceivable that the presence of a party under compulsion could ever be held a legal substitute for notice, where notice is required. So far from it being equivalent to notice, compulsory attendance may well be calculated to defeat the very purpose for which notice should be given. Woerner on Guardianship, 400; Whitenack in re, 3 N.J.Eq. 252; Morton v. Sims 64 Ga. 298. Inquisition of insanity is primarily an ex parte proceeding. The commission and jury might require the attendance of the subject of the inquiry and he might appear voluntarily, but in neither event did his presence make the finding of the inquisition conclusive upon him. His right to traverse the finding is in no way affected by the question of notice, or of his presence at the proceeding. When his attendance was required, it was rather in the capacity of a witness than as a party to the suit. His presence was regarded merely as an instrument of evidence by which the fact in issue might most properly be established. In fact, in some instances the question of sanity was formerly determined by inspection alone. 2 Cooley's Blackstone (3 Ed.), p. 331. This being the state of the law at the time of the enactment of Section 2, page 323, R. S. 1835, it is clear that the provision with respect to compulsory attendance of the subject of the inquiry could never have been intended as a substitute for, or as the equivalent of notice. It follows, therefore, that neither by the common law nor by statute has an alleged insane person ever had an absolute right to notice of the inquisition. Nor did he have any constitutional right to such notice. Weimer v. Bunbury, 30 Mich. 201; Eames v. Savage, 77 Me. 212, 52 Am. Rep. 751; 10 Am & Eng. Ency. Law, p. 295; Eames v. Savage, 52 Am. Rep. 752; Ex Parte Marmaduke, 91 Mo. 228; Humes v. Railroad, 82 Mo. 221; Railroad v. Humes, 115 U.S. 512; Railroad v. Evans, 85 Mo. 307; State v. Schenk, 238 Mo. 429; State ex rel. Kiel v. Riechmann, 239 Mo. 81. "These cases indicate that personal...