State ex rel. Cook v. Court, 24269.

• Decision Date: 27 March 1923
• Docket Number: No. 24269.,24269.
• Citation: 193 Ind. 20,138 N.E. 762
• Parties: STATE ex rel. COOK v. MADISON CIRCUIT COURT et al.
• Court: Indiana Supreme Court

193 Ind. 20

138 N.E. 762

STATE ex rel. COOK

v.MADISON CIRCUIT COURT et al.

No. 24269.

Supreme Court of Indiana.

March 27, 1923.

Original suit by the State, on the relation of Martha P. Cook, against the Madison Circuit Court, William A. Kittinger, Presiding Judge, and another, for a writ of prohibition. Writ issued.

MYERS, J.

This is an original suit brought by the state of Indiana, on relation of Martha P. Cook, against the Madison circuit court, William A. Kittinger, presiding judge thereof, and the Commercial Bank & Trust Company of Alexandria, Ind., to obtain a writ of prohibition prohibiting the defendants from exercising any jurisdiction over the person or property of Henry H. Cook.

The complaint and returns thereto show that on November 11, 1922, the relatrix filed in the office of the clerk of the Madison circuit court her verified petition in writing in two paragraphs. The first alleged that one Henry H. Cook was an inhabitant of Madison county, Ind., and that he was a person of unsound mind, and incapable of managing his estate. The second, in part, alleged that the relatrix and Henry H. Cook were married on June 30, 1917, and continuously since that time have been, and are now, husband and wife. Many other facts are narrated pertaining to their married life unnecessary here to recite. It further appears from this paragraph that about 2 1/2 years before the filing of her petition her husband was stricken with a disease commonly known as “sleeping sickness,” which in various forms continued and then existed; that as a result of that disease he was and is “in a greatly enfeebled and impaired state of physical health, and in an enfeebled, impaired, and unsound condition of mind; *** that said defendant, by reason of his aforesaid condition of mind and body, is wholly unable to direct his own movements or to give any attention to his business affairs”; that his actions and movements are wholly controlled by nurses, attendants, guards, attorneys, and others, who have assumed control over his actions and conduct, and this petitioner, without cause, has been excluded from all communications, either directly or indirectly, with him; that, upon notice of this action being brought and summons served upon the defendant, the parties thus in control of his movements will, unless he is taken into custody, immediately seek to remove him from his home and the jurisdiction of this court, and use all means to prevent a hearing upon this petition. The prayer, among other things, was that a guardian be appointed for the defendant, and “for all proper relief in the premises.” Upon the filing of this petition the same was then submitted to the court, and thereupon the court issued an order as prayed to the sheriff of Madison county, Ind., to take Henry H. Cook into custody, and forthwith bring him into court on November 16, 1922. “And now, on agreement of William S. Dives and Ed Yule on part of the defense that the defendant Harry Cook will be present at the trial of this cause, the court now orders the sheriff to release the said Cook from his custody.”

On November 28, 1922, the clerk of the Madison circuit court and the prosecuting attorney of that circuit filed separate answers in general denial. Thereupon the petitioner, Martha P. Cook, filed her verified motion and affidavit for a change of venue from the county, which motion the court then and there sustained, and on December 20, 1922, the venue was perfected in the Henry circuit court. Afterwards, on December 29, 1922, one Robert H. Malone filed in the office of the clerk of the Madison circuit court a petition in which it was made to appear that Henry H. Cook, an inhabitant of Madison county, had an estate therein of value, and that he was incapable of managing his estate and business affairs because of physical infirmity, and that a guardian should be appointed to take charge of his estate, manage, control, and conserve the same under the direction of the court. Summons was issued, returnable more than 10 days thereafter, but upon the same date, and after the cause had been entered by the clerk upon the court's docket and upon the entry docket, a member of the Madison county bar “appeared in open court for and on behalf of the defendant Henry H. Cook, and then and there in open court, and with the clerk thereof,” filed an answer in general denial. See return of Judge Kittinger. At the same time attorneys of the Madison county bar, representing Malone, appeared in open court and moved that the cause be then tried, which request being assented to by counsel for defendant, the cause was thereupon submitted to the court for trial without the intervention of a jury, witnesses were sworn and heard, and the court found, among other things, that Henry H. Cook was incapable of managing his business and affairs on account of infirmities brought about by long and continued sickness, and appointed the defendant Commercial Bank & Trust Company guardian, which appointee then and there in writing accepted and entered upon its duties as such guardian.

In the instant case respondents attempt to justify the court's action in taking jurisdiction of the Malone petition on the theory that the cases of Cook v. Cook and Malone v. Cook are separate and distinct proceedings, in that the parties are not the same; that the Malone petition tendered the issue - physical infirmity-in accordance with section 3111a, Burns' 1914, while the Cook petition submitted the issue-unsoundness of mind-as authorized by section 3101, Burns' 1914. Hence it is claimed that jurisdiction by the Madison circuit court over one of these proceedings in no manner conflicted with the jurisdiction of the Henry circuit court over the other proceeding.

[1] Since the act of 1895 (Acts 1895, p. 205; section 3101, Burns' 1914), amending section 2545, R. S. 1881, proceedings for the appointment of guardians for persons of unsound mind have been treated as civil actions, and, except as otherwise specially provided, the procedure in such cases is governed by our Civil Code. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507;Berry v. Berry, 147 Ind. 176, 46 N. E. 470. The act of 1852 with its amendments (2 R. S. 1852, p. 333; section 3100 et seq., Burns' 1914), entitled “An act defining who are persons of unsound mind, and authorizing the appointment of guardians for such persons; defining the powers and duties of such guardians,” and the act of 1911 (Acts 1911, p. 533; Acts 1919, p. 520; section 3111a et seq., Burns' 1914), entitled “An act providing for the appointment of guardians,” have to do with the same general subject. While each of these enactments may be regarded as separate and distinct legislation, yet, in so far as we are at present concerned, both are involved, and must be treated together. The jurisdiction of the court having probate jurisdiction, under both of these enactments, may be invoked by “any inhabitant of such county.” The issue in either case “shall be tried as the issues in civil actions,” and, if the issue be decided in favor of the petitioner, “such court shall appoint a guardian for such person” and his estate, whose duties are the same as those “required of and granted to guardians of minors so far as the same may be applicable.”

[2] In the one case (section 3101) it is made the duty of the clerk to form the issue by denying the facts in the statement, and of the prosecuting attorney to...