Supreme Council of Royal Arcanum v. Nicholson

• Decision Date: 19 December 1906
• Citation: Supreme Council of Royal Arcanum v. Nicholson, 104 Md. 472, 65 A. 320 (Md. 1906)
• Parties: SUPREME COUNCIL OF ROYAL ARCANUM et al. v. NICHOLSON.
• Court: Maryland Court of Appeals

65 A. 320

104 Md. 472

SUPREME COUNCIL OF ROYAL ARCANUM et al. v. NICHOLSON.

Court of Appeals of Maryland

December 19, 1906

Appeal from Circuit CourtNo. 2 of Baltimore City; Pere L. Wickes Judge.

The Supreme Council of the Royal Arcanum and Camilla D. Nicholson filed a petition in lunacy proceedings against Camilla D Nicholson, instituted by Camilla D. Nicholson, Jr.Demurrer to the petition sustained, and petitioners appeal.Reversed.

Argued before McSHERRY, C.J., and BOYD, PEARCE, SCHMUCKER, JONES and BURKE, JJ.

James McC.Trippe, for appellants.

R. H. Pleasants, for appellee.

BURKE J.

This appeal presents an important question of practice relating to the execution of the writ de lunatico inquirendo.The question arises in this way.Upon the application of Camilla D. Nicholson, Jr., to the circuit courtNo. 2, Baltimore City, a writ de lunatico inquirendo was issued to the sheriff of Baltimore City commanding him to summon a jury to inquire into the mental condition of Camilla D. Nicholson, who was alleged in the petition to be of unsound mind and a lunatic.The jury was summoned as directed, and by their inquisition, which was returned to the court by the sheriff, Camilla D. Nicholson was found to be of unsound mind, and incapable of the government of herself, or the management of her estate, and that she had been in such state of mind for more than three years past.The inquisition was confirmed by the court, and on the same day, to wit, the 1st day of December, 1905, Camilla D. Nicholson, Jr., was appointed committee of the person and estate of the said Camilla D. Nicholson.The Supreme Council of the Royal Arcanum had issued a benefit certificate to Edwin C. Nicholson, who had died on the 7th day of October, 1905, before the lunacy proceedings had been instituted.By the terms of the certificate the sum of $3,000 was payable to the alleged lunatic upon the death of the assured.The court passed an order upon the petition of the committee authorizing her to employ counsel and institute proceedings for the collection of said sum.In pursuance of that order, the committee sued the Supreme Council of the Royal Arcanum in the superior court of Baltimore City for the recovery of the amount payable under the benefit certificate.Thereupon the Supreme Council of the Royal Arcanum and Camilla D. Nicholson filed a petition in the lunacy case wherein they prayed: "(a) That the said writ de lunatico inquirendo hitherto issued in these proceedings, and the said inquisition held by the sheriff of Baltimore City aforesaid, and the return of the said writ may be quashed, and that the order confirming said inquisition may be set aside, and that a new writ de lunatico inquirendo may be issued in order that the sanity of the said Camilla D. Nicholson may be lawfully inquired into, and that, in the execution of the same, her legal rights and personal liberty and the care of her property may be regarded.(b) That an order may be passed in the premises forbidding the said Camilla D. Nicholson, Jr., committee as aforesaid, to prosecute the said suit in the superior court of Baltimore City until the further order of this court.(c) That an order may be passed in the premises requiring the said Camilla D. Nicholson, Jr., committee as aforesaid, to show cause on or before a day to be named therein why the relief prayed for should not be granted."The grounds upon which this relief was asked are stated in the third paragraph of the petition as follows: "That the appointment of the said Camilla D. Nicholson, Jr., as committee of the said Camilla D. Nicholson, is defective and illegal on the face of the inquisition, and in the manner in which the writ was executed, for the reason that the said Camilla D. Nicholson, who was at the time of the execution of the said writ within the state of Maryland, had no opportunity presented to her to appear in person before said jury, and had no notice of the time and place of the inquisition, and did not appear before said jury, although it was practical and convenient for her to do so, and it was practical and convenient for said jury to have required her attendance before them, and to have notified her of said inquisition, and that said jury made said inquisition without having said lunatic before them, and without seeing her in person in order to judge of her mental condition and without said alleged lunatic having an opportunity to be heard, and that it does not appear, on the face of the proceedings, nor upon the face of the return of the writ, that said lunatic appeared before said jury, or that her presence was impracticable or inconvenient, or that there was any reason for her absence, or that she had notice of said inquisition, and your petitioners further represent that said Camilla D. Nicholson did not, in fact, appear before said jury of inquisition, and that, under the circumstances of this case, her presence was indispensably necessary."Upon the filing of the petition the court passed on order nisi, requiring the committee to show cause on or before a certain day why the relief prayed for should not be granted, and, in the meantime, she was enjoined from prosecuting the suit at law.To this petition Camilla D. Nicholson, Jr., the committee, filed a demurrer.The court sustained the demurrer and dismissed the petition, and from this order Camilla D. Nicholson and the Supreme Council of the Royal Arcanum appealed.

The main and important question presented by the appeal is this Do the reasons assigned in the third paragraph of the petition, which has been hereinbefore transcribed in full, constitute sufficient ground for setting aside the inquisition and return, and the order of confirmation passed thereon?So far as we have been able to discover this precise question has not heretofore been passed upon by this court, but, upon general principles of law and well-considered cases in other jurisdictions, it would seem to be simple and free from difficulty.It is difficult to overestimate the gravity and seriousness of the consequences to the citizen which necessarily flow from an adjudication declaring him to be non compos mentis.He is divested of his property, and may be restrained of his liberty and incarcerated in an insane asylum.To assert that this can be done, under the general principles of American law, without notice, or opportunity to be heard, is shocking to one's sense of justice and humanity.No such general rule of procedure can be recognized by the American courts.On the contrary, the well-considered cases, where the question has arisen, have been uniform in holding that the person proceeded against must have reasonable notice of the time and place of taking the inquisition, and an opportunity to attend and make his defense.This is the general rule, and can only be departed from in such exceptional cases as shall be hereafter mentioned.In 16 Am. & Eng. Enc. of Law, p. 567, it is stated that "where, as in England, a traverse of the inquisition is deemed a matter of right, it seems that a failure to serve notice on the alleged lunatic does not invalidate the proceeding.But in the United States it is generally held that...