State ex rel. Bartlett v. Littrell, No. 29923.

CourtMissouri Supreme Court
Writing for the CourtGantt
Citation26 S.W.2d 768
PartiesTHE STATE EX REL. JOHN R. BARTLETT, Guardian of Person and Estate of DANIEL M. BARTLETT, v. J.G. LITTRELL, Judge of Probate Court of Livingston County.
Decision Date08 April 1930
Docket NumberNo. 29923.
26 S.W.2d 768
THE STATE EX REL. JOHN R. BARTLETT, Guardian of Person and Estate of DANIEL M. BARTLETT,
v.
J.G. LITTRELL, Judge of Probate Court of Livingston County.
No. 29923.
Supreme Court of Missouri.
Court en Banc, April 8, 1930.

Prohibition.

PROVISIONAL WRIT MADE ABSOLUTE.

Franken & Timmons for relator.

(1) A hearing upon an affidavit alleging the restoration of the mind is a continuation of the former proceeding. State ex rel. v. McQuillan, 246 Mo. 595; Dutcher v. Hill, 29 Mo. 274; In the Matter of Marquis, 85 Mo. 615; In the Matter of Crouse, 140 Mo. App. 545; Sec. 489, R.S. 1919; Phione v. Wessell, 53 Mo. App. 667. (2) The notice of the hearing may be waived: (a) Where the alleged lunatic appeals. Hendricks v. Settle, 170 Ky. 344; In re Anderson, 132 N.C. 243. (b) Where, subsequent to the adjudication, the alleged incompetent applies for an accounting by the guardian and that he be discharged as such. Moats v. Moore, 199 Ill. App. 270. (c) Where the alleged insane person appears and requests a hearing as to the restoration of his right mind. Dutcher v. Hill, 29 Mo. 271. (3) Prohibition is the proper remedy to prohibit a court from entertaining a suit, the subject-matter of which is already in process of litigation in another court of coordinate jurisdiction, which has jurisdiction of both the subject-matter and the parties. State ex rel. Sullivan v. Reynolds, 209 Mo. 161; State ex rel. Mitchell v. Gideon, 215 Mo. App. 46. (4) The jurisdiction of the estate of Daniel M. Bartlett being in the Carroll County Probate Court, the Probate Court of Livingston County is wholly without jurisdiction over the subject-matter. In such case a writ of prohibition will issue and applicant is not required to appeal from the order of the court overruling his plea to the jurisdiction. A litigant will not be required to appeal from a void judgment. State ex rel. Orr v. Latshaw, 291 Mo. 592; State ex rel. Tuller v. Seehorn, 246 Mo. 585; State ex rel. Judah v. Fort, 210 Mo. 525; State ex rel. Knisely v. Trustees Y.W.C.A., 268 Mo. 168; State ex rel. United Rys. Co. v. Wiethaupt, 238 Mo. 155; Ferris on Extraordinary Legal Remedies, p. 434, sec. 322.

Davis & Ashby, Amos D. Short and Guy Whiteman for respondent.

(1) The appointment of relator guardian of the person and estate of Daniel M. Bartlett was void. Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794; 32 C.J. 653; Skelley v. The Maccabees, 272 S.W. 1096; Shanklin v. Boyce, 275 Mo. 5, 204 S.W. 187. (2) One cannot be adjudged of unsound mind and incapable of managing his affairs in a proceeding wherein he seeks restoration under Sec. 489, R.S. 1919. A proceeding thereunder presupposes a prior adjudication of insanity in accordance with all the provisions of Section 444. The procedure, issues and evidence are not the same under these sections. The law presumes sanity; at the outset there is a presumption of sanity. 16 C.J. 537. The alleged insane person is shielded by this presumption and it must be overcome before he can be adjudged of unsound mind. He is a competent witness in his own behalf. In a proceeding under Section 489, having been adjudged insane, he is not a competent witness in his own behalf; he must prove his sanity. The Probate Court of Carroll County was without jurisdiction to hold the inquiry as to whether Daniel M. Bartlett had been restored to his right mind, since there had been no prior adjudication of his insanity. Its hearing and judgment thereon was a nullity and void. It was not due process of law. (3) A void proceeding cannot remain in fieri — in the breast of the court. Having entered a void judgment in 1922, the proceedings could not remain in fieri to ambush the jurisdiction of another probate court in a county wherein six years later the alleged non compos mentis has residence. (4) There was no waiver by Daniel M. Bartlett of his right to be present at the inquisition on his sanity; of his right to have counsel at the inquisition on his sanity; or of his right to a jury, or to call for and demand a jury, at the hearing on his sanity. Waiver presupposes knowledge of the thing to be waived. Callies v. Modern Woodmen, 98 Mo. App. 531; 40 Cyc. 953. It is a voluntary relinquishment of some known right, or advantage, and which, except for such waiver, the party otherwise would have enjoyed. 40 Cyc. 253. (5) Relator's remedy is by appeal — not prohibition. Baker v. Smith Estate, 18 S.W. (2d) 147.

GANTT, J.


Original proceeding in prohibition, at issue on the petition, return and a motion for judgment on the pleadings. The facts follow:

On information filed in the Probate Court of Carroll County on October 30, 1922, Daniel M. Bartlett was adjudged a person of unsound mind and incapable of managing his affairs. He did not appear in person or by attorney, and the court appointed an attorney to represent him. John R. Bartlett, his father, was appointed guardian of his person and estate. He qualified and is acting as such under said appointment.

After release from the asylum, and on July 13, 1928, Daniel and his uncle, W.T. Singleton, filed in the Probate Court of Carroll County their joint allegation in writing, verified...

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2 practice notes
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...a presumption of continued mental incapacity (unless accidental or temporary in nature), State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; Kiehne v. Wessell, 53 Mo.App. 667; Richardson v. Smart, 65 Mo.App. 14; First Christian Church in Salem v. McReynolds, 194 Or. 68, 241 P.2d ......
  • Cadden v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • 15 Junio 1951
    ...Jorgenson v. Winter, 69 Wash. 573, 125 P. 957; Pope v. Bolin, 224 Ala. 322, 140 So. 382; State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; Bradford v. Ragsdale, 174 Tenn. 450, 126 S.W.2d 327, 121 A.L.R. 1506; 44 C.J.S., Insane Persons, Sec. We think the motion by this petitione......
2 cases
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...a presumption of continued mental incapacity (unless accidental or temporary in nature), State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; Kiehne v. Wessell, 53 Mo.App. 667; Richardson v. Smart, 65 Mo.App. 14; First Christian Church in Salem v. McReynolds, 194 Or. 68, 241 P.2d ......
  • Cadden v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • 15 Junio 1951
    ...Jorgenson v. Winter, 69 Wash. 573, 125 P. 957; Pope v. Bolin, 224 Ala. 322, 140 So. 382; State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; Bradford v. Ragsdale, 174 Tenn. 450, 126 S.W.2d 327, 121 A.L.R. 1506; 44 C.J.S., Insane Persons, Sec. We think the motion by this petitione......

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