State v. Holtcamp

• Citation: 277 S.W. 607
• Decision Date: 03 November 1925
• Docket Number: No. 19257.,19257.
• Parties: STATE ex rel. HOLTHAUS v. HOLTCAMP, Probate Judge, et al.
• Court: Court of Appeal of Missouri (US)

277 S.W. 607

STATE ex rel. HOLTHAUS v. HOLTCAMP, Probate Judge, et al.

No. 19257.

St. Louis Court of Appeals. Missouri.

November 3, 1925.

Rehearing Denied November 20, 1925.

Proceedings in an insanity inquiry cannot be reviewed in an application for rule of prohibition, as if on appeal.

Proceedings by the State of Missouri, at the relation of Fredericka Holthaus, for a writ of prohibition directed to Charles W. Holtcamp, Judge of the Probate Court of the City of St. Louis, and another. Preliminary rule discharged.

Frederick A. Wendt and Armin C. Beste, both of St. Louis, for relatrix.

Jos. C. Schroeder and Campbell Allison, both of St. Louis, for respondents.

DAUES, P. J.

This is an original proceeding by prohibition. Our preliminary rule having issued, respondents filed a return in the nature of a demurrer to the petition for the writ, and thus we have the issues made. The situation may be stated, briefly, as follows:

The respondent Holtcamp is judge of the probate court of the city of St. Louis, Mo. On February 6, 1925, respondent Elmo G. Holthaus filed an information before said probate court alleging that relatrix, Fredericka Holthaus, was in the city of St. Louis, and by appropriate averments prayed for an inquiry into her sanity, charging that she was incapable of managing her affairs and that she owned property in the state of Missouri of the value of about $3,000., The information was verified, and on the same day the probate court entered of record an order for notice, directing the summons or notice to the sheriff of Jackson county, Ill., the relatrix being at that time in Murphysboro in said county, in the state of Illinois. The notice was issued by the court on February 6, 1925, and was served on relatrix by the sheriff of Jackson county, Ill., on February 10, 1925. This notice, proper in form, denominated Friday, February 13, 1925, at 10 o'clock a. m., as the day upon which the hearing was to be held in the probate court in the city of St. Louis, Mo. The sheriff's return shows that relatrix was served on February 10, 1925, by delivering a true copy of the petition and summons to her. Relatrix ignored the summons, and on February 13, 1925, the probate court, with the aid of a jury, held an inquiry into the sanity of relatrix, which resulted in the finding that relatrix was of unsound mind and incapable of managing her affairs. On the same day, respondent Elmo G. Holthaus was appointed guardian of the person and estate of relatrix. Holthaus duly qualified and has since acted as guardian of the relatrix and took charge of her property situated in the city of St. Louis. The petition for the writ of prohibition was filed on May 4, 1925.

It is the position of relatrix that all the proceedings had in the probate court are null and void and of no effect and in excess of the jurisdiction of said probate court, for the reasons:

First. That the information in the original proceedings does not allege that relatrix is a "nonresident of the state," nor that "she owns property in the city of St. Louis liable to waste, etc.," nor that she "is in lawful custody of some responsible person, or is the husband or wife of one who owns property in such city which he desires to convey free of the curtesy, dower or other marital rights of such husband or wife."

Second. That at the time of the filing of the information for a sanity test the relatrix for a period of three years resided in Jackson county, Ill., and that the information charged that relatrix was "of the city of St. Louis," and therefore the probate court had no jurisdiction of the relatrix under section 444, Revised Statutes of Missouri 1919, since that statute applies only to an information that charges that the person whose sanity is inquired about must be a person in the county where the probate court is situated.

Third. That the application for guardianship filed by respondent Holthaus is false and fraudulent, in that the relatrix was at all times mentioned in the proceedings a resident of the state of Illinois and not a resident of the city of St. Louis, Mo.

Fourth. That the notice of the hearing was unreasonably short, in that the distance from Murphysboro, Ill., where relatrix was summoned, is 125 miles from the city of St. Louis, the notice being served on February 10, 1925, and the hearing having been held on the 13th day of said month. And

Fifth. That there was an attempt to raise a constitutional question which, if really present, would deprive us of jurisdiction in the case, but this seems to be abandoned.

We discuss only those questions which are necessary for a proper determination of the case. The probate court is given jurisdiction in this kind of cases by sections 444 and 499 of our statutes. Under the former section the proceedings are brought where the alleged insane person is found in the county where the proceedings are held, and under the latter section where such insane person is a nonresident of the state. At any rate, the question as to whether relatrix was in fact a resident of the city of St. Louis, or was a nonresident of the state of Missouri, was a question of fact. It was a judicial fact which it was the duty of the probate court to determine. If such fact of residence was one to be judicially determined by the probate court, then although the court may have erred in deciding such fact, that is, whether relatrix was a resident of the city of St. Louis or was a nonresident, our writ of prohibition will not lie to correct that error. The petition for a sanity inquiry lodged in the probate court alleging that relatrix "of the city of St. Louis" had property in this city, together with other appropriate averments, gave the probate court jurisdiction to hear...