State ex rel. Paxton v. Guinotte

• Decision Date: 02 April 1914
• Parties: THE STATE ex rel. JOHN G. PAXTON v. JULES EDGAR GUINOTTE, Judge of Probate Court
• Court: Missouri Supreme Court

165 S.W. 718

257 Mo. 1

THE STATE ex rel. JOHN G. PAXTON v. JULES EDGAR GUINOTTE, Judge of Probate Court

Supreme Court of Missouri

April 2, 1914

Writ quashed.

Cowherd Ingraham, Durham & Morse and Clark & Houts for relator.

(1) A plaintiff may dismiss any suit pending in a court of record at any time before it is finally submitted to the court or jury. R. S. 1909, secs. 1979-1980; Houston v Thompson, 87 Mo.App. 63. The rule in will contest cases is not applicable to other cases. Benoist v. Murrin, 48 Mo. 48; Hughes v. Burris, 85 Mo. 660; Norton v. Paxton, 110 Mo. 456. (2) An insanity proceeding is a "suit" within the meaning of the statutes providing for dismissal and non-suit. R. S. 1909, secs. 480, 481, 529 1727, 1756, 3845; Ackerle v. Wood, 95 Mo.App. 378; Clinton v. Clinton, 223 Mo. 371; State ex rel v. Dickman, 157 S.W. 1012; State ex rel. v. Holtcamp, 235 Mo. 232; State ex rel. v. Montgomery, 160 Mo.App. 724; Dougherty v. Snyder, 97 Mo.App. 495; Morris v. Morris, 128 Mo.App. 673; Berry v. Berry, 147 Ind. 176; Hunt v. Searcy, 167 Mo. 158. Cases denying the right of appeal are not in point. State ex rel. v. Dickman, 157 S.W. 1012; State ex rel. v. McQuillin, 246 Mo. 586. (3) The informant is the "plaintiff" and has the right to dismiss under the statutes. Secs. 481, 1727, R. S. 1909; 6 Words and Phrases, 5397; cases supra.

Rozzelle, Vineyard & Thacher for respondent.

(1) Relator's contention that because he gave the information which satisfied the court that the facts should be inquired into by a jury, he had the absolute right to dismiss the inquiry and that when he filed his application asking that the inquiry be dismissed, the court lost its jurisdiction, is based on the section of the Code of Civil Procedure in circuit courts, which is:

"Section 1980. The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury or to the court, and not afterwards." Respondent contends that the probate court had jurisdiction of the subject-matter and of the person, and that the application of relator for leave to withdraw the information given by him to the court and for a dismissal of the proceedings did not oust the court of the jurisdiction it was exercising on behalf of the alleged unfortunate and the public. State ex rel. v. Hinds, 148 Mo.App. 305; Allen v. Dodson, 39 Kan. 220; Smith-Fraser V. & S. Co. v. Derse, 41 Kan. 150; Noys v. Derse, 41 Kan. 153; Bond v. White, 24 Kan. 306; Wilder v. Boynton, 63 Barb. 547; Young v. Bush, 36 How. Pr. 242; Adger v. Prindle, 11 S.C. 527; State v. Wear, 145 Mo. 205. Respondent further contends that section 1980 of the Code of Civil Procedure does not apply to sanity inquests in probate courts and where the probate court has jurisdiction over the subject-matter and of the person of an alleged idiot, lunatic or person of unsound mind and has ordered the facts to be inquired into by a jury as provided by statute, a request of the informer or other person that the inquiry be dismissed does not operate to dismiss the proceeding and that the dismissal rests in the sound discretion of the court and the request should not be granted without good cause of objection is made. (2) The necessity as well as the duty of the state to protect the estates of incompetent persons and to guard incompetents against harm to themselves and the public is a sovereign power which in England the King as parens patriae exercised through the lord chancellor by virtue of a standing warrant under the king's Sign-Manual and wholly distinct from his chancery jurisdiction under the Great Seal. Buswell on Insanity, secs. 28, 29; Ex parte Grimstone, Amb. 206; Buford v. Lenthall, 2 Atk. 551; In re Fitzgerald, Ll. & Gt. Pl. 20, 2 Sch. & Lef. 432; In the Matter of Heli, 3 Atk. 635; Oakley v. Long, 29 Tenn. 254. The adjudicated cases hold that the conduct of sanity inquiries in the United States is not derived from the common law nor the equity branch of chancery practice. This is also evidenced by the fact that the Federal courts have no such jurisdiction. Fontain v. Ravenel, 17 How. 391; Hoodley v. Chase, 126 F. 818; 129 F. 1005. It has also been held that the duty of caring for the persons and property of insane persons being in the states, the power to hold inquests and care for the person and property of insane persons should be assumed by courts having equity powers wherever the constitution or statutes did not make provision for such inquests, but that this power was assumed on grounds of public policy and ex necessitate and not as a branch of equity jurisdiction. Buswell on Insanity, sec. 29; Yeomans v. Williams, 117 Ga. 800. (3) Probate court procedure in sanity inquests is a complete statutory code within itself and is not governed by the general code of civil procedure. Young v. Boordman, 97 Mo. 190; Cox v. Osage County, 103 Mo. 389; Bradley v. Woener, 46 Mo.App. 371; Morris v. Lane, 44 Mo.App. 1; Galbreath v. Black, 89 Ind. 300; Ruhlman v. Ruhlman, 110 Ind. 314; In re Murtaugh, 102 N.Y.S. 177; Benoist v. Murrin, 48 Mo. 48; Bradford v. Blossom, 207 Mo. 228; Cash v. Lust, 142 Mo. 637; McMahon v. McMahon, 100 Mo. 99. A proceeding to determine whether a person is of unsound mind and incapable of managing his affairs is likewise a proceeding in rem and the absolute right to dismiss is for like reasons "in conflict with public policy." Cockrill v. Cockrill, 79 F. 134, affirmed 92 F. 811; Browning v. Chrisman, 30 Mo. 353; Adderton v. Collier, 32 Mo. 507; Harris v. Sanders, 38 Mo. 421. Probate courts are clothed with certain jurisdiction by the Constitution and statutes and have no common-law or equity jurisdiction. Ferris v. Highley, 87 U.S. 375; Holbrook v. Cook, 5 Mich. 228; Deming Co. v. Webb, 76 Mo.App. 337; In re Estate of Glover & Shipley, 127 Mo. 153; Railroad v. Probate Judge, 63 Mich. 676; In re Wells, 67 N.Y.S. 631. (4) An insanity inquiry is a summary proceeding and the institution and control of the inquiry is in the sound discretion of the court. (a) Ordering an inquiry is a matter of discretion. In re Clifford, 57 N.J.Eq. 14; R. S. 1909, secs. 474, 529; In re Zimmer, 14 Hun, 214. (b) Evidence sufficient to invoke the exercise of this discretion. In re Latta, 43 Kan. 533; In re Chudek, 118 Mich. 361; Berthia v. McLennon, Ired. L. 523. (c) The person giving the information need not be personally interested. In re Burke, 125 A.D. 889; Baker v. Searle, 2 R. I. 115; Shenango Tp. v. Wayne Tp., 34 Pa. St. 184; Territory v. Gallatin County, 6 Mont. 297; Foran v. Healey, 73 Kan. 637. (d) Dismissal of sanity inquiry at the request of the informant is discretionary with the court. R. S. 1909, sec. 531; State ex rel. v. Johnson, 138 Mo.App. 306; Florez v. Uhrig, 35 Mo. 519; Jones v. Traction Co., 137 Mo.App. 411; Ensor v. Smith, 57 Mo.App. 584. (e) There was no abuse of the court's discretion in denying the application to dismiss the proceedings.

OPINION

In Banc

Certiorari.

FARIS J.

-- This is an original proceeding by certiorari, to bring up the record of the probate court of Jackson county, in the matter of an inquiry formerly pending in that court, touching the sanity of one Jane Eliza Plunket.

Jane Eliza Plunket is the wife of Dr. J. D. Plunket, of Nashville, Tennessee. She was the sister of Thomas H. Swope, deceased, and by the will of the latter there was bequeathed to her the sum of $ 10,000, together with a devise of a half-interest in a certain building situate on Main street in Kansas City, Missouri. Upon an inquest of lunacy had at Nashville she was adjudged to be a person of unsound mind and a curator of her property appointed for her. This curator, one Robert Vaughan, a resident of Nashville, had joined with Mrs. Plunket's cotenant in the Kansas City property in making a lease thereof for a term of years to Oppenstein Brothers. The latter being, as the petitioner in the insanity proceeding averred, apprehensive touching the validity of a lease of Missouri real estate executed by a foreign curator of one who had been adjudicated a person of unsound mind, Vaughan had his attorney, the relator Paxton herein, to institute in the probate court of Jackson county, of which respondent herein is the judge, an inquiry into the sanity of Mrs. Plunket, pursuant to the provisions of section 529, Revised Statutes 1909. Notice of this proceeding was served on Mrs. Plunket in Nashville, Tennessee, whereupon, in response thereto, she came to Kansas City and procuring counsel, arranged to defend against the proceeding to have her adjudged insane. Relator thereupon went into the probate court and asked leave to dismiss the proceeding, averring his willingness to pay all costs of whatever kind accruing upon the inquiry up to the time of his asking leave to dismiss. Mrs. Plunket resisted relator's efforts to dismiss, and to this end filed in the probate court strenuous suggestions in opposition thereto, which suggestions being duly considered by the court, were sustained for the reasons set out in the finding and order of the court, which finding and order as they may be pertinent, and are cogent, we subjoin:

"Now on this day this matter coming on to be heard on the original and supplemental application of John G. Paxton for leave to withdraw the information in writing given to the court and dismiss this proceeding and the same, together with the answer and cross petition under oath of Jane Eliza Plunket filed prior to the filing of said original application praying that the proceeding shall not abate, but that it should be tried and the objections under oath of the said Jane Eliza Plunket to the granting of such leave and also her objections to granting the leave requested in such supplemental application each and...