State v. Wurdeman

• Decision Date: 18 February 1908
• Citation: 129 Mo. App. 263,108 S.W. 144
• Parties: STATE ex rel. TAYLOR, Public Adm'r, v. WURDEMAN.
• Court: Missouri Court of Appeals

108 S.W. 144

129 Mo. App. 263

STATE ex rel. TAYLOR, Public Adm'r, v. WURDEMAN.

St. Louis Court of Appeals. Missouri.

February 18, 1908.

1. INSANE PERSONS — INQUISITIONS — JURISDICTION — VENUE.

In the absence of any statute regulating the procedure, the rule is that the chancery or probate court of the place of residence of a supposed lunatic is the proper forum to conduct an inquiry as to his mental state.

2. DOMICILE — RESIDENCE.

Under Rev. St. 1899, § 4160, cl. 17 [Ann. St. 1906, p. 2253], providing that the place where the family of any person permanently resides shall be deemed the place of residence of such person, where a wife resided with her husband in J. county, having all her property therein, but on becoming insane was removed to an asylum in another county, her residence continued to be in J. county, even after her husband's death.

3. INSANE PERSONS — INQUISITIONS — JURISDICTION — VENUE.

Ann. St. 1906, p. 2060 (Rev. St. 1899, § 3650, as amended by Laws 1903, p. 200), provides that on information to the probate court that any person in its county is insane and incapable of managing his affairs, the court shall cause the facts to be inquired into by a jury. Section 3653 [page 2061] provides that whenever any county judge, justice of the peace, etc., shall discover any person resident in his county to be of unsound mind, he shall apply to the probate court for the exercise of its jurisdiction, and thereupon a like proceeding shall be had as on informations by unofficial persons. Section 3654 provides that, if the jury find that the subject of the inquiry is of unsound mind and incapable of managing his affairs, the court shall appoint a guardian. Held that, where a wife residing with her husband in J. county, and having all her property therein, became insane and was confined in an asylum in another county, the probate court of J. county, after her husband's death, had jurisdiction to inquire into her sanity.

Appeal from Circuit Court, St. Louis County: Jno. W. McElhinney, Judge.

Mandamus by the state, on the relation of Daniel C. Taylor, public administrator, against Gustavus A. Wurdeman, judge of the probate court of St. Louis county. From a judgment refusing a peremptory writ, relator appeals. Affirmed.

J. C. Kiskaddon, for appellant. Farris & Mathews and A. E. L. Gardner, for respondent.

GOODE, J.

This is a proceeding to compel the judge of the probate court of St. Louis county to reinstate and hear an information filed in said court by the relator, Daniel C. Taylor, public administrator of said county, saying Mrs. Melissa Connor is of unsound mind and incapable of attending to her own affairs, and asking that an inquiry concerning her mental condition be held. The probate court dismissed said proceeding May 30, 1907, on the ground of a prior adjudication concerning the insanity of Mrs. Connor by the probate court of Jasper county, wherein she was adjudged to be of unsound mind and incapable of managing her affairs, and W. H. Phelps, who had moved to dismiss the proceeding in the St. Louis county probate court, had been appointed guardian, and had given bond and qualified as such. As there is no dispute about the facts, and the question at issue is one at law, it will be unnecessary to recite the pleadings. The information was filed by the relator, D. C. Taylor, in the probate court of St. Louis county, on April 10, 1907, and Mrs. Connor was duly notified of the proceeding, and that there would be a hearing thereof April 17th; but on April 17th Mr. Phelps, who had been appointed guardian in Jasper county, moved to dismiss the cause, and it was dismissed, as stated, on the ground of the prior adjudication in the probate court of Jasper county. The latter proceeding was instituted on or about April 2, 1907, or eight days before the filing of the information by relator in St. Louis county probate court. The informant in Jasper county was E. O. Brown, and in his written information he represented to the probate court of said county that Mrs. Connor resided in said county, had no children, owned both real and personal estate in Jasper county, was a person of unsound mind and incapable of managing her affairs, and prayed to have a jury inquire into Mrs. Connor's sanity, and to take all due proceedings in accordance with the laws of this state in such case made and provided. On the filing of that information a notice or process was issued under the hand and seal of the judge of the Jasper probate court to Mrs. Connor, notifying her of the filing of the information by Brown and its contents, and that an inquiry concerning the matters alleged would be heard in the probate courtroom, in the courthouse in the city of Carthage, Jasper county, Mo., at 9 o'clock on the 8th day of April, 1907, before a jury, as required by law; and further notifying her she might appear and show cause, if any she had, why a guardian should not be appointed to take charge of and attend to her business affairs. This notice was duly served on Mrs. Connor in the county of St. Louis and state of Missouri, on April 6, 1907, by delivering to and leaving with her a true copy. On April 8th said proceeding concerning the sanity of Mrs. Connor came on to be heard in the Jasper county probate court before a jury, and resulted in a verdict that she was of unsound mind, and incapable of managing her affairs; whereupon the court adjudged she was of unsound mind, and incapable of managing her own affairs, and appointed W. H. Phelps guardian of her person and estate, ordered him to give bond in the sum of $100,000, which bond was given and approved, and Phelps entered upon the discharge of his duties. The record of the proceeding in the Jasper probate court recites the filing of the information by Brown wherein it was stated Mrs. Connor was a resident of Jasper county, Mo., owning both real and personal estate in said county, and that she was of unsound mind and incapable of managing her affairs; recited, further, that the court found due notice of the proceeding had been given to Mrs. Connor by personal notice of the information, and that it further appeared to the court Mrs. Connor's mental and bodily condition was such that she had to be daily and constantly watched, and could not be safely brought before the court, and therefore her presence and attendance on the investigation was dispensed with. The information filed by the relator, Taylor, in the probate court of St. Louis county, stated, along with averments regarding the insanity and incapacity of Mrs. Connor, that she was, at the time of the filing of the information, in the county of St. Louis, and confined in St. Vincent's Institution for the Insane, an asylum located therein. It is contended by the relator that the proceeding in Jasper county was coram non judice, because on the face of the files and records therein it appeared Mrs. Connor was not in Jasper county when the proceeding for an inquiry was instituted, or when the hearing occurred, but, on the contrary, was in St. Louis county in St. Vincent's Asylum, and that she was served in said county with the process issued from the Jasper court. Relator's contention is that on this showing it is apparent the Jasper court was without jurisdiction, and therefore its judgment was a nullity, and did not stand in the way of the proceeding instituted later by the relator in the St. Louis county probate court, and hence the latter court erred in dismissing the proceeding before it, and ought to be made to reinstate it and proceed to a hearing and judgment. This mandamus proceeding came on for hearing in the circuit court of St. Louis county on issues joined, and after evidence had been introduced on the issues, the court refused a peremptory writ, and an appeal was prosecuted.

The evidence taken proves without dispute these facts: Mrs. Melissa Connor was the wife of Thomas Connor, now deceased. He resided in Jasper county continuously from 1872 until his death March 29, 1907, and accumulated a large estate situate almost entirely in that county. His wife also resided there previous to their marriage. They were married in 1874, and lived together continuously in the city of Joplin, in Jasper county, until 1886, when she became insane and was placed by her husband temporarily, as was supposed, in the St. Vincent Sanitarium, an institution for the treatment and care of the insane. This institution was then located in the city of St. Louis, but was subsequently removed into St. Louis county, outside the city limits. Mrs. Connor so far recovered her reason in 1889 as to be able to return to Jasper county, where she remained a short time, but on account of the return of her malady was placed again in the St. Vincent institution, and has been there continuously until the present time as an insane patient. During his lifetime her husband provided bountifully for her comfort and treatment by the authorities and attendants of the asylum, and in his last will bequeathed to her the income from $100,000, to be paid to her annually in case she recovered her mind. As long as she remained in a state of mental unsoundness there was to be set apart and paid for her care and support the sum of $150 a month, and such further sums as might be necessary in the opinion of the Sisters of Charity at St. Vincent's Asylum for her comfort, care, and treatment. The will said the testator wished her to have at all times and under all circumstances the best possible care and treatment that could be provided. After the death of Mr. Connor his executors qualified and conducted the administration of his estate under the direction of the probate court of Jasper county, Mo., and have carried out the provisions of his will in relation to his wife. Apart from the bequest to her in her husband's will and her interest in his estate, Mrs. Connor owns property in her own name worth $6,000 or $7,000, all in Jasper county, except the furnishings of her room in...