State ex rel. Anderson v. Kirkland

• Decision Date: 12 December 1932
• Parties: STATE EX REL. CHARLES H. ANDERSON, RELATOR, v. E. E. KIRKLAND, JUDGE, ETC., RESPONDENT
• Court: Kansas Court of Appeals

55 S.W.2d 697

227 Mo.App. 643

STATE EX REL. CHARLES H. ANDERSON, RELATOR, v. E. E. KIRKLAND, JUDGE, ETC., RESPONDENT

Court of Appeals of Missouri, Kansas City

December 12, 1932

Original proceeding in prohibition seeking to prohibit the Honorable E. E. Kirkland, Judge of the Probate Court of Clay County, Missouri, from proceeding further with inquiry as to relator's sanity.

Writ made permanent.

James S. Simrall, Francis E. Howe and Ellison & Dabbs for relator.

Alan F Wherritt and L. C. Harper for respondent.

OPINION

BLAND, J.

This is an original proceeding in prohibition by which relator seeks to prohibit the Honorable E. E. Kirkland, Judge of the Probate Court of Clay County, Missouri, from proceeding further with an inquiry into his sanity.

Our preliminary writ of prohibition has been issued. Respondents have made their return and relator has filed a motion for judgment on the pleadings. Under these circumstances, the facts set forth in the return will be taken as true. [State ex rel. v. McQuillin, 262 Mo. 256, 171 S.W 72.]

The facts show that on June 23, 1932, respondent, Leland B Anderson, filed in the Probate Court of Clay County, an information in the form of an affidavit, stating that his father, Charles H Anderson, relator, was and had been a resident of Clay County more than sixteen years; that relator was possessed of real and personal property situated in said county and that he was of unsound mind and incapable of managing his affairs. On the same day respondent, Kirkland, as Judge, issued a notice to the relator which complies with the requirements of section 450, Revised Statutes 1929. The return recites that the notice "was issued" to the Sheriff of Wyandotte County, Kansas, to be delivered to relator, Charles H. Anderson. The notice was duly served by the sheriff, and on August 5, 1932, relator applied to this court for a writ of prohibition and a temporary writ was issued, as before stated.

The only question to be determined is whether or not a process of this nature, served outside of the State, although the party served is a resident of this State, conferred jurisdiction upon the Probate Court of Clay County. We think not.

Beyond doubt this is a proceeding in personam. [Raher v. Raher, 150 Iowa 511, 129 N.W. 494.] In fact there is no contention to the contrary made in this case. The notice provided by section 450 is equivalent to process in ordinary civil actions and, unless it is properly served, the inquiry into the sanity is void. [State ex rel. v. Duncan, 195 Mo.App. 541, 193 S.W. 950.]

In the case of Moss v. Fitch, 212 Mo. 484, 501, 111 S.W. 475, the court said:

"So that we repeat that whatever may be holdings elsewhere, our court places the acquisition of jurisdiction upon which a personal judgment can be rendered, upon the fact of personal service of the party with process in this State. In other words, no process issued by the courts of this State and served upon the party defendant in another State can be the basis of a personal...