State ex rel. Wilkerson v. Skinker

• Citation: 126 S.W.2d 1156,344 Mo. 359
• Decision Date: 15 March 1939
• Docket Number: 36402
• Parties: State of Missouri at the relation of T. J. Wilkerson, Judge of the Probate Court of Dallas County, and W. T. Finley, Relators, v. C. H. Skinker, Judge of the 18th Judicial Circuit and of the Circuit Court of Dallas County
• Court: Missouri Supreme Court

126 S.W.2d 1156

344 Mo. 359

State of Missouri at the relation of T. J. Wilkerson, Judge of the Probate Court of Dallas County, and W. T. Finley, Relators, v. C. H. Skinker, Judge of the 18th Judicial Circuit and of the Circuit Court of Dallas County

No. 36402

Supreme Court of Missouri

March 15, 1939

Provisional rule in prohibition dissolved and permanent writ prayed for refused.

J Francis O'Sullivan, Herman Pufahl, James P. Hawkins and Ladner & Livingston for relators.

(1) Prohibition is relators' only proper remedy. Relators are entitled to have the preliminary rule made permanent, upon the court's finding that there is no appeal in the instant case from the order of restoration. (a) The preliminary rule having issued, the case is here for decision upon its merits. Sec. 1615, R. S. 1929; State ex rel Mueller v. Wurdeman, 232 S.W. 1004; State ex rel Dunlap v. Higbee, 328 Mo. 1066, 43 S.W.2d 826. (b) Under the circumstances of the case, the writ is a matter of constitutional right. State ex rel. Knisley v. Jones, 274 Mo. 374, 202 S.W. 1117; State ex rel. Ellis v. Elkins, 130 Mo. 90, 30 S.W. 333. (c) The writ lies to stay mandamus proceedings where relators in mandamus have no legal rights or financial interest. State ex rel. Johnson v. Sevier, 337 Mo. 483, 98 S.W.2d 677. (d) Preliminary rule and permanent writ should be granted where ordinary remedies are not prompt, efficient and effectual. State ex rel. Gary Realty Co. v. Hall, 322 Mo. 1118, 17 S.W.2d 935; Ellis v. Elkins, 130 Mo. 90, 30 S.W. 333; State ex rel. Scarritt Estate v. Johnson, 303 Mo. 664, 262 S.W. 373. (e) Permanent writ will be granted where irreparable loss of property or extensive expenditures would be required if wrongful jurisdiction be continued. State ex rel. Anheuser-Busch Brewing Co. v. Eby, 170 Mo. 497, 71 S.W. 52. (f) Finley is a proper co-relator here, even though not a party to the mandamus case, since he is materially affected thereby. Thomas v. Clark, 41 Mo. 49; Trainor v. Porter, 45 Mo. 340; State ex rel. Priest v. Calhoun, 207 Mo.App. 149, 226 S.W. 332; State ex rel. Darst v. Wurdeman, 304 Mo. 583, 264 S.W. 404; State ex rel. Drainage Dist. v. Duncan, 334 Mo. 733, 68 S.W.2d 684. (2) The right of appeal in Missouri is wholly statutory and before the enactment of the 1921 Amendment there was no appeal by anyone from the probate court to the circuit court from an adjudication of sanity or insanity. (a) Right of appeal in Missouri is wholly statutory. State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64; O'Connell v. Dockery, 102 S.W.2d 748; Braenel v. Reuther, 270 Mo. 603, 193 S.W. 283; Bueker v. Aufderheide, 111 S.W.2d 131; McFall v. Murray, 117 S.W.2d 330. (b) Before the enactment of the 1921 Amendment, there was no appeal by anyone from the probate court to the circuit court from an adjudication of sanity or insanity. In re Crouse, 140 Mo.App. 545, 120 S.W. 666; State ex rel. v. McQuillin, 246 Mo. 586, 151 S.W. 444; State ex rel. v. Holtcamp, 330 Mo. 1101, 55 S.W.2d 429. (3) The 1921 Amendment (Sec. 285, R. S. 1929) does not permit appeals by anyone from the probate to the circuit court from an order of restoration to sanity. Sec. 285, R. S. 1929; Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794; Ald's Est. v. Appling, 131 P. 569; In re Erickson Est., 180 P. 263; Moberly v. Powell, 229 Mo.App. 857, 86 S.W.2d 383; Hamilton v. Henderson, 117 S.W.2d 383. (4) Section 285, Revised Statutes 1929, is an amendment to Section 284 and must be read in connection with Section 284 and succeeding sections which require the party appealing to have an interest in the estate of the alleged insane person and be aggrieved by the judgment. Secs. 284, 285, 287, 289, R. S. 1929; 59 C. J. 1094; Grimes v. Reynolds, 184 Mo. 679, 83 S.W. 1132, affirming 94 Mo.App. 576, 68 S.W. 588; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990. (a) Cases from other jurisdictions holding that neither sister nor guardian are interested or aggrieved persons. Nimblett v. Chaffee, 24 Vt. 628; In re Erickson, 180 P. 263; Studabaker v. Markley, 34 N.E. 606; Brooking v. Branyan, 66 N.E. 464; McKenna v. McKenna, 69 A. 844; Hadfield v. Cushing, 86 A. 897; In re Carpenter, 123 N.W. 144; Harmon v. Harmon, 206 S.W. 333; White v. Williamson, 161 S.E. 654; Ensign v. Faxon, 112 N.E. 948. (b) Cases from Missouri holding that neither sister nor guardian are interested or aggrieved persons. In re Shortridge, 84 S.W.2d 983; State ex rel. v. Holtcamp, 330 Mo. 1101, 55 S.W.2d 428. (c) Sister and guardian are not appealing on behalf of Finley, and neither they nor Finley could have appealed on behalf of Finley because Finley obtained the relief for which he prayed and therefore was not "aggrieved." 2 Am. Jur., sec. 153, p. 945; Cockrill v. Cockrill, 79 F. 143; Scott v. Parkview Realty & Imp. Co., 241 Mo. 112, 145 S.W. 48; Lines Music Co. v. Holt, 48 S.W.2d 92; Long Mercantile Co. v. Soffron, 104 S.W.2d 770.

Lamm & Barnett, Letcher D. King and Kirby, King & Overshiner for respondent.

(1) In a lunacy proceeding ex necessitate the State has an interest and acts in its character of parens patriae. This attribute is one of sound public policy and is based upon the theory that the public has an interest in the welfare of the incompetent to guard him and his estate against harm to him by unscrupulous persons and to guard him against harm to himself and to the public and to protect the public against his becoming a public charge. State ex rel. v. Guinotte, 257 Mo. 1, 165 S.W. 718; Buswell on Insanity, secs. 28-29; 32 C. J., pp. 627-629; State ex rel. Terry v. Holtcamp, 51 S.W.2d 19; In re Moynihan, 62 S.W.2d 418. (a) And it has been held in Missouri that the State's interest is such that the informant who commenced the inquiry de lunatico cannot dismiss it. State ex rel. v. Guinotte, 257 Mo. 1. (b) It follows therefore that the State may place the power to inform in one not even a relative of the incompetent (Sec. 448, R. S. 1929; State ex rel. v. Brasher, 200 Mo.App. 126), and from the very nature of the proceeding the State may place the power and right to appeal and make the affidavit for appeal in "any relative of such person, or any reputable citizen of the county." Sec. 285, R. S 1929. (2) It is probable, the finding and judgment of the probate court being final, that even before 1921 (when what is now Sec. 285, R. S. 1929, was enacted), under our then statutes and the best considered cases construing them, an appeal would lie, taking into consideration the spirit which pervades our statutes to allow appeals from all final judgments. Secs. 284, 1938, R. S. 1929; Secs. 282, 2436, R. S. 1919; In re McMenamy's Guardianship, 270 S.W. 668; Baker v. Smith's Estate, 18 S.W.2d 151; State ex rel. Smith v. Williams, 275 S.W. 535; In re Wood's Estate, 261 S.W. 944. (a) Cases which at first blush appear to hold contra (such as In the Matter of Crouse, 140 Mo.App. 545; State ex rel. v. McQuillin, 246 Mo. 586), will upon close examination be found to be grounded on the fact the judgment of the probate court was not final or the court did not have the sections cited above under consideration or the facts were not similar. (3) Even though it is possible there may have been some question concerning the right to appeal prior to 1921, after what is now Section 285 was enacted in 1921, any question as to the right to appeal "in all cases in which the judgment of the probate court . . . has made a finding in the matter of an investigation of the mental condition of anyone alleged to be insane" has been set at rest. An "inquiry as to the sanity" provided for in Section 493 in restoration is equivalent to or included in the term "an investigation of the mental condition mentioned in Section 285. Secs. 285, 493, R. S. 1929, Laws 1921, p. 124; Rhea v. Young, 86 S.W.2d 585; Harrelson v. Flourney, 78 S.W.2d 895; Wells v. Tannory, 2 S.W.2d 189; Baker v. Smith's Estate, 18 S.W.2d 147; Hamilton v. Henderson, 117 S.W.2d 383; Moberly v. Powell, 86 S.W.2d 386; State ex rel. Townsend v. Holtcamp, 55 S.W.2d 431. (a) And it has been held that upon an inquiry under Section 493 in re restoration "the same issues as to sanity or insanity . . . are in question as were in question upon the previous inquiry under Section 448 upon the original inquiry under which he was adjudged to be a person of unsound mind," the only difference being that upon an inquiry for restoration under Section 493 the presumption of insanity attends the proceeding and the burden of showing restoration is upon applicant. Harrelson v. Flourney, 78 S.W.2d 901; State ex rel. v. Littrell, 26 S.W.2d 768. (4) Within the meaning of Section 285, Revised Statutes 1929, W. T. Finley is a person "alleged to be insane." The inquiry for restoration to sanity is not an independent or original proceeding, but is a step in or part of the proceeding that was commenced by the filing of the original affidavit whereby the court was informed that W. T. Finley was a person of unsound mind. State ex rel. v. McQuillin, 246 Mo. 596; Dutcher v. Hill, 29 Mo. 274; In the Matter of Marquis, 85 Mo. 617. (5) Section 285 is complete in itself and its meaning plain, but if it be contended that Section 285 must be read in connection with Sections, 284, 287 and 289, Revised Statutes 1929, there is no disharmony nor discord. If there was disharmony or conflict, Section 285, being the latest enactment, would control. 59 C. J., p. 1052, sec. 621; State ex rel. Halsey v. Clayton, 226 Mo. 292. (a) And Section 285 comes within the two well-recognized rules: (1) "Statutes giving the right of appeal are liberally construed in furtherance of justice; such an interpretation as will work a forfeiture of that right is not favored." (2) "An act intended to extend the right of appeal is remedial and should receive a liberal...