State v. Hodgdon

• Citation: 251 S.W. 131
• Decision Date: 03 April 1923
• Docket Number: No. 18392.,18392.
• Parties: STATE ex rel. JOHNSON v. HODGDON, Probate Judge.
• Court: Missouri Court of Appeals

251 S.W. 131

STATE ex rel. JOHNSON v. HODGDON, Probate Judge.

No. 18392.

St. Louis Court of Appeals, Missouri.

April 3, 1923.

"Not to be officially published."

Original proceeding in prohibition by the State, on the relation of Justus W. Johnson, against Samuel D. Hodgdon, Judge of the

Probate Court of St. Louis County. Preliminary writ made permanent.

W.W. Schiek, of St. Louis, for relator. A. E. L. Gardner, of Clayton, for respondent.

ALLEN, P. J.

This is an original proceeding in prohibition by which it is sought to prohibit the respondent, judge of the probate court of St. Louis county, from taking any further cognizance of the matter of the guardianship of the person and estate of relator; respondent having attempted to adjudge relator insane and to appoint a guardian of his person and estate.

The petition for the writ alleges that on September 2, 1921, one Della Johnson filed an information (set out in the petition) in the probate court of St. Louis county, presided over by respondent, praying for an inquiry into the sanity of relator, and, that on September 3, 1921, a notice was issued by respondent, directed to the sheriff of said county, a copy of which, according to the return of the sheriff, was served upon relator on that day; said notice being as follows:

"The State of Missouri.

"To the Sheriff of the County of St. Louis— Greeting: Whereas, Della Johnson, has filed in our probate court of the county of St. Louis, information in writing, verified by affidavit, that one Justus W. Johnson of said county, is a person of unsound mind and incapable of managing his affairs, and praying that an inquiry thereinto be had, according to the statutes in such case made and provided:

"You are therefore, hereby commanded to notify the said Justus W. Johnson that an inquiry into said matter will be had, in and by the said probate court of the county of St. Louis, at the courthouse in said county at Clayton at 9:30 o'clock a. m. of that day, according to the statutes in such cases made and provided. And have you then and there this writ," etc.

The petition further alleges that on September 19, 1921, relator was by respondent unlawfully committed to the city sanitarium of the city of St. Louis and there confined; that on September 26, 1921, respondent, as such judge, without the aid of a jury, undertook to hold an inquiry into the sanity of relator and to adjudge relator to be a person of unsound mind and incapable of managing his affairs and to appoint one D. C. Taylor guardian of his person and estate, relator not being present and being unable to be present because of being confined as aforesaid; and that said Taylor took charge of the property and effects of relator. And it is alleged that all of the proceedings had before respondent as said judge were in excess of his jurisdiction and null and void, for the reason that respondent never acquired any jurisdiction over the person or estate of relator "that the notice of the filing of the information by Della Johnson, as hereinbefore set out, is not a notice conforming to the statutes in such cases made and provided, in this, that the same did not apprise relator of his right to be present, and that by reason thereof the said notice was illegal and did not confer jurisdiction of respondent Hodgdon over the person of relator;" and that by his said illegal order of commitment respondent deprived relator of the right to be present at said inquiry, and relator was unable to be and was not present in court at said time, but that respondent nevertheless undertook to adjudge relator to be of unsound mind.

The petition for the writ named both Judge Hodgdon and the guardian, ...