State ex rel. Pollard v. Brasher

• Decision Date: 11 March 1918
• Parties: STATE OF MISSOURI, ex rel., SAM POLLARD, Respondent, v. J. M. BRASHER, Probate Judge, Appellant
• Court: Missouri Court of Appeals

201 S.W. 1150

200 Mo.App. 117

STATE OF MISSOURI, ex rel., SAM POLLARD, Respondent, v. J. M. BRASHER, Probate Judge, Appellant

Court of Appeals of Missouri, Springfield

March 11, 1918

Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.

REVERSED.

STATEMENT. On March 6, 1917, the public administrator of Pemiscot County filed in the probate court an information asking that inquiry be made as to the soundness of mind and the capacity of Sam Pollard of that county to manage his affairs. On the same day the judge of the probate court issued an order or warrant to the sheriff directing him "to take the said Sam Pollard and him safe keep until the probate court of said county shall convene to inquire into the sanity of said Pollard." The sheriff made return on this order as follows: "Caruthersville, Mo., March 7, 1917. Executed by having the body of the within named Sam Pollard before J M. Brasher, Judge of the Probate Court of Pemiscot County Missouri, as directed." On March 7th, a jury was summoned and a trial had, and the jury returned their verdict: "We, the jury, find that Sam Pollard is a person of unsound mind and incapable of managing his affairs." Upon this verdict judgment was rendered as follows: "It is thereupon considered, ordered and adjudged by the court that Sam Pollard is of unsound mind and incapable of managing his affairs; it is further ordered that Jas. J. Long, public administrator and ex-officio public guardian, be and he is hereby appointed guardian and curator of the person and the estate of said Sam Pollard, under his official bond as public administrator." On March 22, 1917, Sam Pollard filed in the circuit court a petition praying for a writ of certiorari with the object of having the judgment of the probate therein quashed and set aside for the following reasons: (1) "Because no notice was given or served upon the relator of such proceedings, and that he did not voluntarily appear to the proceedings in said court. (2) That the alleged information upon which said lunacy proceedings were based was made by one Jas. J. Long, who was not of kin or related to relator, nor was he interested in any manner in the estate, nor was said Long at said time an officer whose duty it was to file said information. (3) That the information was not sworn to. (4) That said information failed to state that the relator was possessed of an estate or property." The writ of certiorari was ordered issued returnable on April 7th. On March 26th, the judge of the probate court appeared in open court; waived issue and service of the writ of certiorari, and filed a certified copy of all papers and proceedings in the probate court relative to the proceedings in question. On April 13th the circuit court rendered judgment quashing the probate judgment and proceedings on the ground that the probate court had not acquired jurisdiction over the person of Sam Pollard. From this order and judgment quashing the probate judgment and proceedings, the judge of the probate court appealed.

Judgment reversed.

N. C. Hawkins and Ward & Reeves for appellant.

J. R. Brewer and J. E. Duncan for respondent.

STURGIS, P. J. Farrington, J., concurs. Bradley, J., files dissenting opinion.

OPINION

STURGIS P. J.

The statute under which the probate court proceeds in adjudications of insanity expressly provides that the alleged insane person shall be notified of the proceedings unless the probate court order such person to be brought before it. [Sec. 476, R. S. 1909.] The concluding clause of that section purports to authorize the adjudication without notice to the alleged insane party or requiring his attendance, provided the court spreads on its records the reason why notice or attendance is not required. This last provision was held unconstitutional by our Supreme Court in Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206, as being violative of the constitutional provision forbidding any person being deprived of his liberty or property without due process of law, which necessarily includes notice and opportunity to be heard. As we read that decision, however, it does not hold unconstitutional the provision dispensing with notice when the court causes such party to be brought before it at the hearing. The case just cited involved a proceeding which was commenced under the statute of 1835 which provided that the court "shall cause the person alleged to be insane to be brought before the court;" but when the trial was had the statute of 1845 was in force providing no more than that "the court may in its discretion cause the person alleged to be of unsound mind to be brought before the court." Nothing whatever was said in the statute about notice and none was required unless the bringing of the party before the court was itself notice or its equivalent. This continued to be the law until 1879 when the present statute was enacted. Speaking of the record by which the person was adjudged insane in the Hunt case under the statute of 1845, the Supreme Court said, l. c. 183, it "not only wholly fails to show he was notified in any way of that proceeding and that no reason was spread on the record for not bringing his body before the court, but it also fails to show that after qualifying the guardian did anything whatever." The court, however, there said, l. c. p. 176; "It must also be borne in mind that the statutes of 1835 required notice, that is, required the person to be brought into court."

Likewise in the case of Bank v. Shanklin, 174 Mo.App. 639, 161 S.W. 341, the court held an insanity adjudication void where the record of such proceeding showed that the alleged insane person was neither notified of, nor brought before the court at, such proceeding. The court in no wise holds that the bringing of such party before the court would not constitute a sufficient notice or that the clause of the statute so providing is unconsitutional in not affording due process of law. State ex rel. v. Duncan, 195 Mo.App. 541, 193 S.W. 950, holds no more than that where the alleged insane party is not brought before the court and the court's jurisdiction depends on the party being served with notice, then the valid service of a written notice is jurisdictional. The court in no way holds that bringing the party before the court is not itself notice.

In Crow v. Meyersieck, 88 Mo. 411, the court held that the notice given was void and in itself showed want of jurisdiction; but the court further held that a recital in the record that the alleged lunatic was present at the hearing (not merely as a witness as in Bank v. Shanklin, supra, in a proceeding to have his restoration to sound mind declared nor in the capacity of objecting to the jurisdiction) is sufficient notice to confer jurisdiction on the probate court and make the adjudication valid.

The holding of our courts that an adjudication of insanity, without giving the person notice of the proceeding so as to give him an opportunity to be heard, is void as not being due process of law, is in accordance with the current of authority on that subject as shown in Evans v. Johnson, 23 L.R.A. 737, and cases cited both in the opinion and in the editorial note. All the cases dwell on the necessity of notice in such proceedings but no one would interpret such cases as meaning that such notice might not be waived nor should they be taken as holding that notice means only a formal or even an informal writing giving the time, place and purpose of the inquiry, served upon the person to be affected, or verbal notice of like character. In the West Virginia case, supra, the court said in speaking of the necessity of notice in such proceedings that "almost as well might we convict a man of crime without notice." Yet, the only notice given in criminal cases is the arrest and bringing the party before the court. It is usual in criminal cases that a warrant for the arrest states the nature of the proceeding and the court taking cognizance thereof; and so did the warrant in this case recite that: "Whereas, a statement in writing has been presented to the probate court of Pemiscot County, Missouri, by Jas. J. Long, Public Administrator and a citizen of Pemiscot County, Missouri, stating that one Sam Pollard, is insane and incapable of managing his affairs. These are therefore to command you to take the said Sam Pollard and him safely keep until the Probate Court shall convene and inquire into the sanity of said Sam Pollard."

All the cases we have been able to find where this point is discussed hold that the compliance with the statute requiring the alleged insane party to be brought into court under court process as a party to the proceeding, is valid and affords sufficient notice. In fact the statute of most of the States provide for notice by bringing the party into court. In Re Lambert (Cal.), 55 L.R.A. 856 while holding that a proceeding for adjudging a person insane, based on a statute without any provision for notice to the alleged insane person, is void as depriving such person of his liberty and property without due process of law, the court said: "The case before us does not involve the right of the State to provide for the summary arrest of a person against whom a charge of insanity is made, and his temporary detention until the truth of the charge can be investigated. Such arrest would itself be a notice to him of the charge, under which he would be afforded an opportunity for a hearing thereon." The Supreme Court of Indiana in Nyce v. Hamilton, 90 Ind. 417, 418, said: "The statute provides that under the proper written statement being filed, such court shall cause such person to be produced in court, and shall cause an issue to be made by the clerk of such court, denying the facts set forth in such statement;...