State v. Dickmann

• Decision Date: 17 June 1913
• Citation: 157 S.W. 1012
• Parties: STATE ex rel. GARDINER v. DICKMANN, Sheriff.
• Court: Missouri Court of Appeals

157 S.W. 1012

STATE ex rel. GARDINER v. DICKMANN, Sheriff.

St. Louis Court of Appeals. Missouri.

June 17, 1913.

1. PARTIES (§ 1) — WHO MAY BECOME — INTEREST.

Ordinarily any person having an interest in a matter may become a party to proceedings in which he is interested.

2. INSANE PERSONS (§ 10) — INQUISITION — INFORMANTS.

Under Rev. St. 1909, § 474, providing that an information in lunacy proceedings may be filed by any one in interest, and section 477, making it the duty of certain officers to file such information, the initiation of lunacy proceedings is not confined to officers, but extends to any other person in interest; but the right is confined to some person having an interest in either the estate or the personal safety of the person proceeded against.

3. INSANE PERSONS (§ 10) — LUNACY PROCEEDINGS — INFORMANTS — "PERSON IN INTEREST."

The daughter of a mother alleged to be insane is a "person in interest," within the meaning of Rev. St. 1909, § 474, authorizing any one in interest to file the information.

4. HABEAS CORPUS (§ 29) — GROUNDS OF RELEASE.

Const. art. 6, § 34, provides that probate courts shall have jurisdiction over all matters pertaining to probate business and the appointment of guardians and curators of minors and insane persons. Rev. St. 1909, § 474, provides that, on the filing of an information in lunacy with the probate court, that court may cause the facts to be inquired into, "if satisfied that there is good cause for the exercise of its jurisdiction." Held, that where a daughter filed an information in lunacy against her mother, and caused a subpœna to be issued for the taking of the deposition of a witness, such witness could not, to secure his release from an attachment issued against him on his failure to respond to such subpœna, contend that such daughter did not have sufficient interest to file such information.

5. JUDGMENT (§ 475) — CONCLUSIVENESS — ORDERS OF PROBATE COURT.

The same presumptions of validity must be entertained in respect to the judgments and orders of the probate court in matters relating to the administration of estates as are accorded to the judgment and orders of the circuit court.

6. INSANE PERSONS (§ 10) — "LUNACY PROCEEDING" — NATURE.

A "lunacy proceeding," under Rev. St. 1909, §§ 474-477, is a "suit" in the technical meaning of that term, and hence is not an ex parte proceeding, so that the informant is one "party" and the person proceeded against is the adverse party.

7. WORDS AND PHRASES — "EX PARTE PROCEEDING."

An "ex parte proceeding" is one taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.

8. DEPOSITIONS (§ 5) — LUNACY INQUISITION.

In view of Rev. St. 1909, § 474, providing that, if the probate court takes jurisdiction of an information in lunacy, it shall cause the facts to be inquired into by a jury, and section 6384, giving any party to a suit the right to take the deposition of witnesses, an informant in lunacy proceedings is entitled to have his witnesses heard, and hence he is entitled to take evidence by deposition.

9. INSANE PERSONS (§ 20) — PROCEEDINGS — RIGHT TO CALL WITNESSES.

In view of the uniform popular construction and practice, it must be held that an informant, instituting under Rev. St. 1909, § 474, a proceeding to determine the competency of any person, is entitled to call witnesses.

10. DEPOSITIONS (§ 57) — ATTENDANCE OF WITNESS.

Where it is sought to take the deposition of a witness conditionally, his attendance before a notary or commissioner may be secured by attachment.

Habeas corpus by the State, on relation of William W. Gardiner, against Joseph F. Dickman, Sheriff of the City of St. Louis. Writ quashed, and petitioner remanded to custody.

Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for petitioner. Leahy, Saunders & Barth, of St. Louis, for respondent.

REYNOLDS, P. J.

A daughter of a Mrs. Miller filed an information in the probate court of the city of St. Louis, in and by which it is stated that Mrs. Miller is a person "so indicted (sic) to habitual drunkenness and is of unsound mind, and incapable of managing her affairs; that she is the owner of property in the state of Missouri of the value of about $200,000"; that informant prays that an inquiry thereinto be had, according to the statutes in such case made and provided. This was duly sworn to by the informant. We assume that Mrs. Miller was duly served with notice of this information, as no point of lack of notice is made, and it appears that after the filing of the information a notice was served upon her attorneys by the attorneys representing the informant, of the taking of depositions in the case. Afterwards, on application of the attorneys for Mrs. Miller a commissioner was appointed before whom the depositions were to be taken. No point is made on this appointment. The testimony of several witnesses appears to have been taken before the commissioner, and a subpœna was issued by him directed to Gardiner, the petitioner here, summoning him to appear as a witness in the matter before the commissioner at a day, time and place named. Gardiner not appearing, the commissioner issued a writ of attachment to compel his attendance, which writ was placed in the hands of the sheriff of the city who executed it by taking Gardiner into custody, and the sheriff being commanded in the writ to have the body of Gardiner before the commissioner at the place, time and day mentioned in order that he might testify touching the issues involved in the matter of Mrs. Miller's sanity, was proceeding to do so, when Gardiner sued out a writ of habeas corpus. It is alleged in the petition for that writ that the detention by the sheriff was unlawful and that the petitioner is unlawfully deprived of his liberty, it being charged that the attachment issued was unlawful and the restraint illegal because the depositions so attempted to be taken were illegally and improperly being taken, the statutes of this state, as it is alleged, not giving an informant in a proceeding involving an inquiry as to sanity the right to take depositions. The writ of habeas corpus was issued by one of the judges of this court and by agreement of counsel a day in term set for the hearing. At the day set the petitioner appearing in person and by counsel, and the sheriff appearing by counsel, the cause was argued and submitted to the court.

There are only two questions involved in this case. First, is the proceeding in an inquisition to pass on the mental soundness of the party "a suit pending in any court in this state"? second, is the informant "any party to" such suit, so that our statute applies? That section (section 6384, Revised Statutes 1909) provides: "Any party to a suit pending in any court in this state may obtain the deposition of any witness, to be used in such suit, conditionally." Counsel for petitioner assume the negative on both these propositions.

The first proposition is settled authoritatively for us by our Supreme Court in State ex rel. Peper v. Holtcamp, Judge of Probate Court, 235 Mo. 232, 138 S. W. 521. There it is held that the proceedings under which an inquiry into the sanity of a party are had, is not only a suit or action but is such a "civil case" as under the amendment of 1909 to section 28, article 2, to our Constitution, authorizes the return of a verdict by the jury impanelled to try the issue on the concurrence of three-fourths of the members of the jury. It is not only a suit in the full sense of that term, but is not an ex parte proceeding. See Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206.

The second question as to whether the informant is a party to such suit has not been directly settled by any decisions of our Supreme Court or of the appellate courts, to which our attention has been directed or which we have been able to find on our own research. The learned and industrious counsel for the petitioner have cited us to a number of cases from the courts of other states in which it is held that these proceedings are ex parte and that the informant cannot control them even to the extent of dismissing them after they have been commenced, notwithstanding, even if, as under our statute, the informant is responsible for costs incurred in the prosecution of the inquiry. That is the case of Galbreath v. Black, 89 Ind. 300. So it has been held as to proceedings against attorneys for disbarment. See In re Attorney, 83 N. Y. 164. Speaking generally, however, any person having an interest in the matter may be a party in proceedings in which that party has an interest.

In the case of Peter Covenhoven, a Lunatic, 1 N. J. Eq. 19, it is said (loc. cit. 21): "It is clear that a stranger has no right to interfere in a proceeding of this nature. He can neither sue out a commission, nor can he make himself a party to it, by any application he may make to this court."

Our section 474, Revised Statutes 1909, under which this inquiry is instituted, is very broad; it contains no limitation as to persons who may file the information. It allows any one in interest to give the information, while section 477 makes it the duty of certain officers to do so. This in no manner restricts the initiation of proceedings to officers, but is in addition to the general right given by section 474 to any one; by "any one" we hold with the New Jersey court, that these words should be taken to confine the right to some one having an interest in either the estate or the personal safety of the party proceeded against: that it is not granted to a mere stranger.

Here the information was filed by a daughter of Mrs. Miller. Surely she is not "a stranger" and surely she has an interest in the care and welfare of her mother. If the determination of...