State ex rel. Conway v. Glenn, Civil 4528

• Decision Date: 16 November 1942
• Docket Number: Civil 4528
• Citation: 131 P.2d 363,60 Ariz. 22
• Parties: STATE OF ARIZONA, ex rel. JOE CONWAY, Attorney General, Appellant, v. HARRIETTE WILLOUGHBY GLENN, as Guardian of the Estate of WILLIAM CLARK WILLOUGHBY, an Incompetent, Appellee
• Court: Arizona Supreme Court

131 P.2d 363

60 Ariz. 22

STATE OF ARIZONA, ex rel. JOE CONWAY, Attorney General, Appellant, v. HARRIETTE WILLOUGHBY GLENN, as Guardian of the Estate of WILLIAM CLARK WILLOUGHBY, an Incompetent, Appellee

Civil No. 4528

Supreme Court of Arizona

November 16, 1942

APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Appellant.

Mr John M. Williams, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an action brought by the State of Arizona, plaintiff against Harriette Willoughby Glenn, as guardian of the estate of William Clark Willoughby, an incompetent, defendant, to recover certain sums claimed to be due for the maintenance of said incompetent in the Arizona State Hospital. Judgment was rendered in favor of defendant, and this appeal was taken.

The facts necessary for a determination of the appeal are not in question and may be stated as follows: William Clark Willoughby was employed by the Southern Pacific Railroad Company on December 18, 1928, on which date he suffered an accident and an injury while in the course of his employment. On April 25, 1930, the judge of the superior court of Pima county entered his order in case No. 4728 adjudging Willoughby to be insane and committed him to the state hospital, where he remained from July 11, 1930, to April 18 1941, and again from May 13, 1941, to July 10 of the same year. The order of commitment made at the time contained no reference to the payment of any maintenance while he was in the state hospital, with the exception of the following:

"Mrs. W. C. Willoughby, wife, Douglas, Ariz., probably has claim against S.P. Co. for injury which caused his present condition, and some funds may be available in the future from that source."

His wife was appointed guardian of his estate by the superior court of Cochise county and effected a cash settlement with the railroad company for his injuries. Mrs. Willoughby died on January 27, 1938, and Harriette Willoughby Glenn, the daughter of the incompetent, was appointed guardian of his estate by the superior court of Cochise county, and duly qualified as such. In November, 1940, an informal request was made by the officers of the state hospital to the guardian for the payment of the maintenance expenses of the incompetent at the hospital. As a result of this request, seven monthly payments of $30, and one of $12, were made by the guardian, but payments were then stopped. On January 20, 1942, the attorney general filed a petition in the superior court of Pima county for an inquiry into the ability of the incompetent's estate to bear the charges and expenses of his maintenance while in the state hospital. Pursuant to the petition an order to show cause was issued and a hearing was had, the guardian being present at such hearing, when the following order was made:

"In the Matter of the Application for the Commitment of W. C. Willoughby An Alleged Insane Person

No. 4728 Decision

"This matter coming on regularly for hearing an order to show cause why the court should not fix the charges against the estate of W. C. Willoughby, an alleged insane person, for the period during which he was an inmate of the state hospital, which charges would be for his maintenance, and it being undisputed at the hearing by the respondent, Harriette Willoughby Glenn, that the sum of $30 a month was a reasonable sum to be charged for the period the said Willoughby was an inmate of the state hospital, and the records of this court disclosing that in the original commitment, filed on April 25, 1930, the Judge of this court made the following entry:

"'Mrs. W. C. Willoughby, wife, Douglas, Ariz., probably has claim against S.P. Co. for injury which caused his present condition, and some funds may be available in the future from that source.'

"It appearing from the said above entry that the court did not fix any sum for such maintenance because there was no assurance that the estate would have any money to pay the same,

"NOW, THEREFORE, the court does fix the sum of $30.00 a month as a reasonable charge to be paid by the estate of W. C. Willoughby, an alleged insane person, for his maintenance at the state hospital during the following periods:

"July 11, 1930 to April 18, 1941

"May 13, 1941 to July 10, 1941.

"Done in open court this the 12th day of February, A.D. 1942.

"Evo De Concini "Judge"

Shortly thereafter the officers of the state hospital prepared a creditor's claim against the estate of the incompetent for his maintenance for the period which he was in the hospital, showing credits thereon of the payments above referred to made by the guardian, and a balance of $3,712 still due. No action was taken by the guardian on this claim for the reason, as stated by her, that she did not think it was a valid one, whereupon this suit was brought under the provisions of sections 38-1005 and 38-1007, Arizona Code 1939. It was established that the estate of the incompetent was fully able to pay the claim, but judgment was rendered nevertheless for defendant.

The first question we consider is as to under what authority the claim for maintenance was made. At the time the order above set forth was made, chapter 44 of the Regular Session Laws of 1941, as amended by chapter 23, first special session of 1941, was in effect. Sections 6 and 17 thereof read so far as material as follows:

"Sec. 6. Payment of maintenance. In the event a person is received by the state hospital whose estate is chargeable with his maintenance, the court shall fix the amount to be charged, and the state hospital, through the business manager, shall collect all moneys due therefor. Moneys so collected, moneys collected for the care of voluntary patients, and, when and as collected, moneys due from the United States or any agency or instrumentality thereof for the confinement, care, or maintenance of Indian wards of the government or other persons committed pursuant to federal action are appropriated to the state hospital for the insane, for the operation and maintenance fund. When collected they shall be paid to the state treasurer, through the state auditor."

"Sec. 17. Cost of maintenance; guardian of property. The superior court shall cause inquiry to be made into the ability of any insane person committed by it, to bear the charges and expenses of his examination, commitment and maintenance while in custody, and if the insane person is able by the possession of money or property, to pay such charges or any portion of them, such court shall fix the amount thereof, and appoint a guardian of the property of such person, as in other cases of guardianship. The guardian shall pay the cost of the examination, and the expenses of commitment and maintenance of said insane person, from the estate of said insane person...."

Section 6, supra, as originally adopted, is first found in chapter 44, supra. Section 17 was an amendment of section 8-303, Arizona Code 1939, which, in turn, traces back through section 1771, Revised Code 1928 and paragraph 1201, Revised Statutes Arizona 1913 (Civ. Code). This history of this statute is important, for it is contended by defendant that any order for the maintenance of a person committed to the state hospital must be made at the time of the commitment, and that the court lacks jurisdiction to make such an order thereafter.

Paragraph 1201, supra, reads so far as material as follows:

"The superior court, at the examination of the alleged insane person, or at any time thereafter, may cause inquiry to be made into the ability of any insane person committed by him to bear the charges and expenses of his examination, commitment and maintenance while in custody, and in any case where the insane person is able by the possession of money or property, to pay such charges or any portion of them, such court shall appoint a guardian of such insane person.... The guardian appointed as hereinbefore mentioned shall pay the cost of the examination, and the expenses of commitment and maintenance of said insane person, from the money and proceeds of the sale of the property of said insane person,...." (Italics ours.)

When the code was revised in 1928, it was amended to read as follows:

"Cost of maintenance; guardian of property. The superior court may cause inquiry to be made into the ability of any insane person committed by it, to bear the charges and expenses of his examination, commitment and maintenance while in custody, and if the insane person is able by the possession of money or property, to pay such charges or any portion of them, such court shall fix the amount thereof, and appoint a guardian of the property of such person, as in other cases of guardianship. The guardian shall pay the cost of the examination, and the expenses of commitment and maintenance of said insane person, from the estate of said insane person." Section 1771.

It will be noted that the language "at the examination of the alleged insane person, or at any time thereafter" found in paragraph 1201, supra, is omitted from section 1771, supra, and that neither it nor section 17, supra, makes any reference whatever to the time at which the order should be made. It is urged that this shows it was the later intent of the legislature that the order of maintenance be made only at the time of the original examination and commitment.

We think it is just as reasonable to say the omission...