The State ex rel. Bevan v. Williams

• Decision Date: 15 February 1927
• Docket Number: 25799
• Citation: 291 S.W. 481,316 Mo. 665
• Parties: The State ex rel. William James Bevan v. B. R. Williams, Judge, and Margaret Doneghy, Clerk, of Probate Court of Macon County, Appellants
• Court: Missouri Supreme Court

291 S.W. 481

316 Mo. 665

The State ex rel. William James Bevan v. B. R. Williams, Judge, and Margaret Doneghy, Clerk, of Probate Court of Macon County, Appellants

No. 25799

Supreme Court of Missouri

February 15, 1927

Appeal from Macon Circuit Court; Hon. Vernon L. Drain Judge.

Reversed.

Matthews & Jones, George N. Davis, Waldo Edwards and Elmer O. Jones for appellants.

(1) The respondent having been declared sane, the issue of sanity or insanity, so far as it effected the proceedings, was a moot question, and as to the personal status of respondent the judgment availed him nothing. If certiorari was available in this case for any purpose, it was available only for the purpose of determining the mode of settling property rights of this respondent. Visalia City Water Co. v Tulare Co., 120 Cal. 219; 6 Cyc. 814; State ex rel Ry. Co. v. Edwards, 104 Mo. 125. (2) The judgment of the circuit court on the writ of certiorari determined nothing necessary for adjudication. It does not vest the respondent with the possession of his property, but leaves him still to his relief at law for his real estate and personal property. The parties in possession of his property, both real and personal, are not bound by the decree in this proceeding; and the judgment of the probate court, even if void, is no defense to claim of title to real or personal property and can be attacked in a collateral proceeding. Skelly v. Maccabees, 272 Mo. 1089; State ex rel. Lathrop v. Dowling, 50 Mo. 134; State ex rel. v. Brasher, 200 Mo. 117; Colman v. Farrar, 112 Mo. 82; State ex rel. v. Shelton, 154 Mo. 670. (3) The judgment of the trial court as to the inquest of insanity being functus officio, the respondent has an adequate remedy at law for the recovery of the title and possession of his property. State ex rel. v. Reynolds, 286 Mo. 120; Hammons v. Renfrow, 84 Mo. 341; Shanklin v. Ward, 291 Mo. 1. (4) Due process of law being shown by the proceedings, the fact that the insane person was present by his own attorneys and the cause was continued, that due notice of such continuance and the date of the continuance was served upon the alleged insane person, fulfils all the requirements of the law. Dutcher v. Hill, 29 Mo. 271; State ex rel. v. Guinnotte, 257 Mo. 1. (5) The proceedings of the probate court on the 14th day of February, 1923, together with the record of the probate court relating to the inquiry, are sufficient to show jurisdiction of the person of the respondent and the cause of action. The recital in the record that the respondent was served with a copy of the complaint and notice of hearing and the date of hearing, together with the record showing that he was in court for the purpose of the hearing, with his attorneys, and that the same attorneys appeared at the hearing, and that the date of hearing was fixed by agreement, is conclusive upon this court. Crow v. Myerseick, 88 Mo. 411; State ex rel. v. Brasher, 200 Mo.App. 117. (6) The record shows that the respondent had availed himself of the right to be represented by counsel before any steps for the hearing were taken and appeared voluntarily on the date of the filing of the petition. The record discloses that such appearance is not by an attorney appointed by the court, nor as a witness, nor did he appear incidentally, but by respondent himself and attorneys of his own choosing and for the purpose of the inquiry and the fixing of a date for the same. Martin v. Mottsinger, 130 Ind. 555; Matter of Bluett, 131 N.Y. 541. (7) While it is true in a lunacy proceeding, the person charged must ordinarily be produced before the jury, still the court may have sufficient reasons shown to dispense with his presence. Where his presence would be attended by danger, great inconvenience or injury to the accused, and the court so finds, or where from the condition of the patient himself it is apparent that his presence might injure him, the court may dispense with his presence at the trial. Royal Arcanum v. Nicholson, 104 Md. 472; Chauvennes v. Priestly, 80 Iowa 316; McCurry v. Harper, 12 Ala. 823; In re Lambert, 134 Cal. 626; State v. Billings, 55 Minn. 467; State ex rel. v. Guinnotte, 257 Mo. 1. (8) Notice is necessary to constitute due process of law, but appearances in person or by attorney waives notice. An appearance presumes an opportunity to be heard and defend, because courts of general jurisdiction are presumed to follow the course of law. State ex rel. Brasher, 200 Mo.App. 117.

Carter, Nortoni & Jones and Ben Franklin & Son for respondent.

(1) The statute requires the information to be in writing and to allege that a person in the county is an idiot, lunatic or person of unsound mind and incapable of managing his affairs, and to pray that an inquiry thereinto be had. Sec. 444, R. S. 1919. The above information is jurisdictional, without which the probate court cannot put the accused on trial. Hunt v. Searcy, 167 Mo. 108; Burke v. McClure, 211 Mo.App. 446; Shanklin v. Boyce, 275 Mo. 5; State ex rel. v. Hodgins, 251 S.W. 131; In re Guardianship of Storick, 31 N.W. 582. The information filed herein is far from a compliance with the section of the statute. It does not charge that the accused is an "idiot, lunatic or person of unsound mind and incapable of managing his affairs." (2) Under the statute the alleged insane person must be notified in writing of the nature of the proceeding, time and place when the proceeding will be heard by the court and that such person is entitled to be present at the hearing and be assisted by counsel. Such notice to be signed by the judge or clerk of the court under the seal of the court and served in person on the alleged insane person a reasonable time before the date set for the hearing. Sec. 446, R. S. 1919. The notice in the case at bar is far from a compliance with the requirements of this section, which notice is likewise jurisdictional, and without which the alleged insane person cannot be placed upon trial. State ex rel. v. Hodgin, 251 S.W. 131; Hunt v. Searcy, 167 Mo. 158; Coleman v. Farrar, 112 Mo. 54; State ex rel. Finch v. Duncan, 195 Mo.App. 541; State ex rel. Crockett v. Satterfield, 274 S.W. 482; Shanklin v. Boyce, 275 Mo. 5; Skelly v. Maccabees, 272 S.W. 1089; Citizens State Bank v. Shanklin, 174 Mo.App. 639; Burke v. McClure, 211 Mo.App. 446. (3) The judgment rolls of the court are controlling. "No presumptions in support of a judgment are to be held in opposition to any statement contained in the record. If it appears that process was served in a particular mode, no other and different service can be presumed." Woodruff v. Lumber Co., 242 Mo. 381. The sheriff's return is a part of the record and is controlling. Cloud v. Pierce City, 86 Mo. 357; Feurt v. Carter, 174 Mo. 289; State ex rel. Crockett v. Satterfield, 274 S.W. 482; State ex rel. v. Grimm, 274 S.W. 456; Wells v. Wells, 279 Mo. 57; Thompson v. Pinnell, 199 S.W. 1013; Williams v. Grudier, 264 Mo. 216. A recital in a record may be impeached by the return of the sheriff. Williams v. Grudier, 264 Mo. 216; State ex rel. v. Gates, 113 Mo.App. 649. (4) Certiorari is the proper remedy in this case. State ex rel. Lunsford v. Landon, 265 S.W. 529; State ex rel. v. Jackson, 93 Mo.App. 516; State ex rel. v. Wiethaupt, 254 Mo. 319. No appeal lies from the probate court in proceedings of this character, and this has always been recognized to be the law. In the Matter of Crouse, 140 Mo.App. 545; State ex rel. Nolte v. McQuillin, 246 Mo. 586. (5) It cannot be said that the mere entry of appearance of attorneys for W. J. Bevan can obviate the necessity of service of notice in the proper way. Little v. Browning, 287 Mo. 278; Bell v. Brinkman, 123 Mo. 270; Fuert v. Carter, 174 Mo. 289; Silver v. Silver, 192 Mo.App. 179; Skelly v. Maccabees, 272 S.W. 1089. More especially is this true in view of the decision of this court in the case of Hunt v. Searcy, 167 Mo. 175, where the court in considering these insanity statutes expressly pointed out the unsoundness of Crow v. Myerseick, 88 Mo. 411.

Ragland, J. All concur, except Graves, J., absent, and Blair, C. J., who dissents.

OPINION

RAGLAND

This is an appeal from a judgment of the Circuit Court of Macon County, in a proceeding in certiorari, quashing the records and proceedings of the probate court of that county, wherein the relator, William J. Bevan, was adjudged to be a person of unsound mind and incapable of managing his affairs.

The purported adjudication occurred on March 1, 1921, and the appointment of a guardian of relator's person and estate on March 2nd. Following the adjudication of insanity and the appointment of a guardian, relator was taken to the State Hospital for the Insane at St. Joseph, where he was confined until March 19, 1923. On that date he was placed under the care of Dr. M. A. Bliss of St. Louis, a specialist in nervous and mental diseases; on April 19, 1923, Dr. Bliss filed in the probate court "an allegation in writing, verifiled by oath," that relator had been restored to his right mind; and on the day following, April 20th, the court held an inquiry as to relator's sanity and duly found and adjudged that he had been restored.

Following the relator's discharge, the guardian, on May 1, 1923 filed in the probate court a final settlement of his accounts as such. According to the inventory and appraisement filed by the guardian, the value of the relator's estate at the time he took charge of it was approximately $ 35,000. The paper filed by him as and for his final settlement disclosed that $ 7,487.48 is all that now remains of the estate. Relator, contending that the appointment of the guardian was void, on the ground that the probate court was without jurisdiction, evidently instituted this proceeding in order that it might be...