State ex rel. Bartlett v. Littrell

• Decision Date: 08 April 1930
• Docket Number: 29923
• Parties: 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
• Court: Missouri Supreme Court

26 S.W.2d 768

325 Mo. 35

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

April 8, 1930

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.

OPINION

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 by oath, alleging that Daniel had been declared by that court to be of unsound mind and that he has been restored to his right mind, is now capable of managing his affairs and praying for an inquiry in that behalf. Thereupon, the court set the case for hearing on July 19, 1928. On application of the attorneys for Daniel and John R. Bartlett, the case was continued to August 8, 1928. At that time, the parties appearing in person and by attorneys, the cause was heard and the court found "that the said Daniel M. Bartlett is not restored to his right mind and is not now a person of sound mind and capable of managing his affairs."

This condition continued undisturbed until May 31, 1929, when an information was filed in the Probate Court of Livingston County alleging that Daniel M. Bartlett was a resident of said county, a person of unsound mind, incapable of managing his affairs, and praying for an inquiry. The cause was set for hearing in said court on June 6, 1929. Daniel was duly and legally notified, and on said day appeared in person and by attorney. At that time the cause was heard and the court found that Daniel was a resident of Livingston County, of unsound mind and incapable of managing his affairs. Joseph J. Shy was appointed curator and guardian of the person and estate of said Bartlett, and qualified as such.

Upon learning of this proceeding, John R. Bartlett, by motion in said court, challenged its jurisdiction on the ground that the jurisdiction was in the Probate Court of Carroll County. The motion was overruled, and the Probate Court of Livingston County will proceed to administer said estate, unless prohibited by this court. John R. Bartlett, acting as guardian by appointment of the Probate Court of Carroll County, then sought relief here, and our provisional rule was issued.

It follows that the issue here is whether the Probate Court of Carroll County or the Probate Court of Livingston County has jurisdiction to administer the estate of said Bartlett.

Relator concedes that the judgment of the Probate Court of Carroll County adjudging Daniel to be of unsound mind and appointing a guardian of his person and estate is void for the reason the notice of the proceeding served on him did not notify him of his right to be present in person at the hearing and to be assisted by counsel, citing Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794; State ex rel. v. Satterfield, 274 S.W. 482; State ex rel. v. Hodgdon, 251 S.W. 131; State ex rel. v. Guinotte, 282 S.W. 68.

While so conceding, relator contends that the jurisdiction of the Probate Court of Carroll County was fixed by Daniel instituting in that court the proceeding for an inquiry to determine if he had been restored to his right mind.

In Dutcher v. Hill, 29 Mo. 271, we held that a ward by coming into court and alleging that he had been restored to his right mind, and praying for an inquiry, thereby admitted of record that the proceedings against him were valid, and he should not thereafter be permitted to question the validity thereof.

In Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206, we overruled that part of the opinion in the Dutcher case, holding that a failure of notice to a person proceeded against in an insanity proceeding was only an irregularity and not a denial of due process. We also therein criticized that part of the opinion in Kiehne v. Wessell, 53 Mo.App. 667, holding that an adjudication that the ward had not been restored to his right mind was an original adjudication of insanity.

That part of the opinion in the...