State ex rel. Lacy v. Probate Court, Marion County

• Decision Date: 18 May 1962
• Docket Number: No. 30197,30197
• Citation: 182 N.E.2d 416,243 Ind. 30
• Parties: STATE of Indiana on the relation of Harold A. LACY, Relator, v. PROBATE COURT, MARION COUNTY, and Joseph G. Wood, as Judge of the Probate Court, Marion County, Respondents.
• Court: Indiana Supreme Court

Page 416

182 N.E.2d 416

243 Ind. 30

STATE of Indiana on the relation of Harold A. LACY, Relator, v. PROBATE COURT, MARION COUNTY, and Joseph G. Wood, as Judge of the Probate Court, Marion County, Respondents.

No. 30197.

Supreme Court of Indiana.

May 18, 1962.

Charles W. Cook, Cook, Bose, Buchanan & Evans, Indianapolis, Richard G. Speelmon, Nashville, for relator.

Joseph G. Wood, pro se.

William H. Krieg, Richard D. Wagner, Lester Irons, Jerry P. Belknap, Indianapolis, for respondents.

Krieg, Devault, Alexander & Capehart, Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel.

JACKSON, Judge.

Relator has brought this original action by the filing of his verified petition for a writ of mandate and a writ of prohibition directed to the respondents. This Court issued a temporary writ, and respondents were ordered to show cause why such writ should not be made permanent. Respondents duly filed their return.

It appears from the record in the instant case that the brother of the relator was appointed guardian of the person and property of relator by the respondent court on November 1, 1957, after a finding that relator was incompetent and unable to manage his own estate and business affairs. Subsequently, relator's brother died and successor guardians were appointed by the respondent court.

At the time of the appointment of the guardian in 1957, relator herein was a voluntary patient at the Milwaukee Sanitarium, Wauwatosa, Wisconsin. He continued as a patient at such institution until he was ordered transferred by the respondent court on November 9, 1961, to the Methodist Hospital, Indianapolis, Indiana.

On December 15, 1961, the guardian of the person of the relator filed with the respondent court a 'Petition for Instructions Concerning Further Hospitalization of Ward', praying for an order authorizing said guardian to remove relator from the Methodist Hospital to an institution known as Anclote Manor, Tarpon Springs, Florida. The guardian alleged that it would be to the best interests of the relator herein to permit his removal to Florida for further observation and treatment.

On January 12, 1962, relator entered what he termed was a special appearance and filed his answer to the guardian's petition for instructions relative to relator's further hospitalization, alleging that the respondent court had no jurisdiction over the person of relator and praying that the petition of the guardian be denied. The respondent court overruled relator's objection as to its jurisdiction, proceeded with a hearing on the petition, and thereafter entered its order on the same day approving the removal of the relator from the Methodist Hospital, Indianapolis, Indiana, to Anclote Manor, Tarpon Springs, Florida, for further treatment until further order of the court.

A 'Petition to Stay 'Order Approving Moving of Ward" was filed by relator on January 15, 1962, alleging, inter alia, that there has been pending in the present guardianship proceeding a complaint filed by relator to vacate and set aside the judgment of the respondent court declaring relator an incompetent and appointing a guardian of his person and of his estate. Also, said petition alleged that if he is moved to Florida he will not be able to freely consult with his attorneys in preparation for his case. Further it was alleged that relator does not want to go to Florida, and that if he is forced to go this will most likely be detrimental to his health.

The petition to stay the order requiring the moving of relator to Florida was overruled by the respondent court, and as a result thereof, this original action was brought. Relator seeks to restrain the respondents from enforcing the order approving his removal to Florida dated January 12, 1962, and to have respondents mandated to expunge from the records said order, or to grant relator's petition to stay said order.

In regard to the jurisdiction of the person of the relator, the record in connection with the service of process in the initial proceedings instituted in 1957 indicates the following situation. A summons was issued and delivered to the Sheriff of Marion County, Indiana, on October 16, 1957, and was thereafter served by a Marion County Sheriff's deputy on October 17, 1957, by leaving a copy thereof at an address indicated to be the last and usual place of residence of the relator herein. In addition, a notice of hearing on the petition for appointment of a guardian was served on October 17, 1957, and the Sheriff's return also indicated that the same was served at the last and usual place of residence of relator. Another summons (not in the form of an alias summons) was read, according to the affidavit appearing on the back thereof, by the brother of the relator to him at the institution in Wauwatosa, Wisconsin, where he was a patient at the time that the guardianship proceedings were commenced. A copy of this additional summons was delivered to one of the physicians at said institution on October 23, 1957, immediately subsequent to the reading thereof to the relator. It appears, also, that a notice of hearing of the guardianship petition was read to relator in Wisconsin at this time.

A study of the record presently before this Court does not expressly indicate whether or not the relator was in fact at the hearing on the guardianship petition which was held on November 1, 1957. However, the record does show that the prosecuting attorney of Marion County by his deputy appeared for the purpose of protecting the interests of the relator. In particular, no finding is indicated in the record that relator was absent from the hearing and that he should not be required to attend because of danger to his health. ¹

In its judgment dated November 1, 1957, appointing relator's brother as his guardian, the respondent court found that summons and notice of hearing on the guardianship petition had been duly and timely served upon relator who was found to be a legal resident of Marion County, Indiana. Thereupon, the respondent court concluded that it had jurisdiction to proceed in the matter.

Respondents contend that this original action brought by relator constitutes a collateral attack on the judgment of the respondent court dated November 1, 1957, finding relator incompetent and appointing a guardian for him.

A distinction between an action considered as a direct attack on the validity of a judgment, and one considered as a collateral attack on its validity, has been described as follows:

'An important, very often controlling consideration bearing on the direct or collateral character of the proceedings relates to the legal authorization for the course taken. The law of every jurisdiction prescribes the manner in which litigants must proceed to correct, vacate, review or annul judicial decisions. It specifies the remedies to be invoked and the extent to which they are available. This being true, it is but reasonable to conclude that an assailant is pursuing a very direct attack when he strikes at the judgment with one of the procedural weapons thus placed at his disposal, and per contra that his assault is essentially collateral when attempted without such legal means. * * *'

Freeman on Judgments, 5th Ed., Vol. 1, § 306, p. 606;

Spencer v. Spencer (1903), 31 Ind.App. 321, 67 N.E. 1018.

Another aspect of a collateral attack is that the direct purpose of the proceedings is to obtain some immediate relief other than the vacation of the judgment, although relief from the judgment may also be necessary under the circumstances. ²

Still another feature which has been attributed to a collateral attack is its attempt to step outside of the record of the former judgment in an attempt to impinge its validity. ³

Relator states that this original action for a writ of mandate and a writ of prohibition cannot be considered a collateral attack because it is made in the very same guardianship proceeding wherein the initial appointment of the guardian was made.

We believe that the features of a collateral attack are present in the case at bar. Relator has brought this original action to vacate and set aside the order of the respondent court of January 12, 1962, allowing the guardian of relator's person to move him to Florida. The basis of this action is the alleged invalidity of the 1957 judgment of the respondent court appointing a guardian of relator's person and estate.

For persons aggrieved by a decision of the probate court, there is provided in the probate code, various remedies to correct alleged errors, such as appeal ⁴ or application for vacation or modification of orders and judgments. ⁵ These remedies are available to guardianship proceedings. ⁶

Relator in this original action in this court is attempting to use an extraordinary remedy to accomplish a result outside of the regular procedure.

Also, it appears that relator seeks to go outside of the record regarding his contentions as to the lack of proper service of process in connection with the 1957 judgment, since the record before this Court indicates that process was duly served, notice given, and personal jurisdiction was obtained. Relator's further contention that he was not present at the hearing in 1957 on the petition for appointment of a guardian for him cannot be determined by this Court on the basis of the record because it is actually silent as to relator's presence or lack of presence at such hearing.

In summary, the immediate relief that relator seeks in this Court is directed to the order allowing relator's removal to Florida, although a necessary corollary to granting such relief would be the setting aside and vacating the judgment of the respondent court dated November 1, 1957, finding relator incompetent and appointing a guardian for him. Thus, under the circumstances, relator's original action herein must be considered as a collateral attack upon the judgment of November 1, 1957.

No question has been raised in this...