State v. Duncan

• Decision Date: 29 January 1917
• Docket Number: No. 12336.,12336.
• Parties: STATE ex rel. FINCH v. DUNCAN, Judge of Probate Court.
• Court: Missouri Court of Appeals

193 S.W. 950

195 Mo. App. 541

STATE ex rel. FINCH v. DUNCAN, Judge of Probate Court.

No. 12336.

Kansas City Court of Appeals. Missouri.

January 29, 1917.

Rehearing Denied March 5, 1917.

Original proceeding for prohibition by the State, on the relation of Nellie D. Finch, against A. B. Duncan, Judge of Probate Court of Buchanan County. Motion for judgment on the pleadings overruled.

Frank M. Lowe and Ira B. Burns, both of Kansas City, for relator. Broaddus & Crow, of Kansas City, for respondent.

TRIMBLE, J.

This is an original proceeding in prohibition. Relatrix seeks to prohibit respondent as judge of the probate court of Buchanan county, Mo., from proceeding further with an inquiry into her sanity, adjudging her of unsound mind and appointing a guardian to take charge of her and her property.

Relatrix's petition set up that on August 26, 1916, she was a resident of Jackson county, Mo., and on that day brought suit for divorce against her husband, Thomas C. Finch, a deputy sheriff of Buchanan county, Mo., and that on the same day her said husband filed an information in the probate court of Buchanan county, alleging that relatrix was a resident of that county and a person of unsound mind, and praying that an inquiry be had into her sanity. Relatrix further alleged that respondent summoned a jury which was impaneled and sworn, and witnesses were heard in regard to the sanity of relatrix, and said jury thereafter returned a verdict finding her to be of unsound mind, and that upon said verdict respondent, unless prohibited, would proceed to appoint a guardian of the person and property of relatrix. It was then alleged that said probate court had no jurisdiction over relatrix in said matter for two reasons: (1) Because relatrix was not, at the time of the filing of the information for an inquiry into her sanity, a resident of Buchanan county, but was and is a resident of Jackson county, Mo. (2) Because said inquiry was had before the jury without any notice having been first served upon relatrix.

Respondent's return admitted and stated, among other things, that on the 26th day of August, 1916, Thomas C. Finch filed said information, and that on the same day respondent, as judge of said probate court, issued notice to Nellie D. Finch, relatrix herein, to appear on September 12, 1916. Said return also alleged that said notice was duly and regularly served upon her more than ten days prior to the hearing and inquiry; that before such hearing was had, but after said notice was served, Nellie D. Finch appeared in the probate court, by her attorneys, and filed motion to quash the notice and return of service on the ground that no notice had been served upon her; that after a full hearing was had by the court upon said motion to quash, the same was overruled by the court. The return further set up that after the motion to quash was overruled, a venire for a jury was issued, a jury was duly and regularly summoned, impaneled, and sworn, but that thereafter relatrix did not appear at the trial of said inquiry; that the court having found that notice had been duly served more than ten days prior to the date of inquiry, said inquiry was had, and the jury returned a verdict finding Nellie D. Finch to be a person of unsound mind and incapable of managing her own affairs, and thereupon the court ordered the case taken under advisement. The return further set up that relatrix did not offer any evidence at any time tending to show that Nellie D. Finch was a resident of Jackson county or of any place other than Buchanan county, Mo.; and that all of the evidence introduced in the probate court showed, and without contradiction proved, that Nellie D. Finch, at the time of the institution of the proceeding, was and is a resident of Buchanan county. The return further set up that prior to the filing of the petition for prohibition, the probate court found and adjudged, from all the evidence, that service of notice was duly and regularly had upon Nellie D. Finch, and also found that she was a resident of Buchanan county; and the return alleges that she was, in fact, a resident of said county, and that the orders and judgment of the probate court became final judgments long prior to the filing of the petition for prohibition.

To this return relatrix filed a reply, which admitted that an information was filed; that a notice was issued; that a return of service was made thereon; that relatrix, limiting her appearance to the purposes of the motion only, filed a motion in said court to quash said notice and return; that evidence on said motion was heard and said motion was overruled; that relatrix did not further appear in said court; that the court thereupon issued a venire for a jury, and said jury heard the evidence and returned a verdict declaring relatrix to be of unsound mind; that said court thereupon made a certain order (setting it out in full). This order recited the appearance of informant, the coming of the jury, the finding that notice had been duly served, the hearing of the evidence, the return and reception of the verdict, and the order directing the cause to be taken under advisement. Nothing is said in this order about the residence of the person whose sanity was being inquired into, and no finding whatever in regard to residence is shown in said order or in any of the orders made by the probate court and brought to our attention in the reply. Relatrix's reply further asserted that, in the hearing on her motion to quash said notice and return, no issue of residence was made, and no evidence was heard on that feature, and that no issue as to the residence of relatrix was ever made at any time, and no evidence was heard by respondent on that question, nor was the question of residence adjudicated by any finding of respondent. Said reply further set up that Thomas C. Finch, the informant in the information which was the basis of the inquiry into relatrix's sanity, is the husband of said Nellie D. Finch, the relatrix, and is the same person who made return of service on the notice in said inquiry proceeding. The reply then set out said notice in full, together with the returns thereon, one of them reciting that the sheriff of Buchanan county, by Thomas C. Finch, deputy, served said notice in Jackson county by delivering a true copy to Nellie D. Finch on September 2, 1916, and the other being the affidavit of Thomas C. Finch, as an individual, that "he served the within notice by delivering a true copy thereof to Nellie D. Finch personally on September 2, 1916." The reply then asserted that said return was false and made for the purpose of deceiving the court, and that the return of service was void on its face.

After the reply was in, the respondent filed a motion for judgment on the pleadings, and the case is now before us for consideration on this motion.

As hereinabove stated, the grounds upon which relatrix claims the probate court has no jurisdiction are: First, that she was not a resident of Buchanan county, but of Jackson county, at the time the information was filed; second, that no notice of said proceeding was served upon her, and the record of the pretended service shows on its face that it is void, and therefore, in law, constitutes no notice. It is true the extraordinary remedy by prohibition is never allowed to usurp the functions of a writ of error or of certiorari, and cannot be employed to correct the errors of inferior tribunals. State ex rel. v. Burckhartt, 87 Mo. 533. "If the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, prohibition will not be granted." Coleman v. Dalton, 71 Mo. App. 14, loc. cit. 24. It is a proper exercise of the judicial powers of every tribunal to decide questions of its own jurisdiction, where they rest upon contested facts, and even though such tribunal may err in that determination, yet that is not usurpation, but error, to correct which the person aggrieved must seek a remedy other than by prohibition. State ex rel. v. Seay, 23 Mo. App. 623, 630; State ex rel. v. Mills, 231 Mo. 493, 133 S. W. 22; State ex rel. v. Caulfield, 245 Mo. 676, 150 S. W. 1047. And respondent invokes this well-established rule in answer to relatrix's contentions and in support of the motion for judgment. But a motion for judgment on the pleadings must be dealt with on the assumption that all material facts properly alleged in the opposite party's pleadings are true. State ex rel. v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676; State ex rel. v. Bradley, 193 Mo. 33, 38, 91 S. W. 483; State ex inf. v. Missouri Pacific R. Co., 241 Mo. 1, 144 S. W. 863. Now, with reference to relatrix's first ground for the writ, it will be observed that the case stands before us on the pleadings in this shape: The petition alleges that relatrix was not a resident of Buchanan county, but resides in Jackson county. The return denies this, and also says the question of her residence was considered, and the probate court decided that she was a resident of Buchanan county. The relatrix's reply, however, says the court in said inquiry heard no evidence as to residence, and made no investigation into that feature of the case; and in support of that charge, the reply brings forward the record entries made by the probate court, which disclose no statement or finding as to residence. Therefore, by and through the motion for judgment on the pleadings, it stands admitted that relatrix is a resident of Jackson county, and that the probate court did not examine into and determine the place of her residence, but proceeded to impanel a jury and inquire into relatrix's sanity without ascertaining where she resided. In other words, it stands admitted by the motion that, as a matter of fact, relatrix is not a resident of Buchanan county, and that the probate court proceeded with the inquiry into her sanity, and is...