Van Loo v. Osage County

• Citation: 141 S.W.2d 805,346 Mo. 358
• Decision Date: 28 June 1940
• Docket Number: 36999
• Parties: Emil Van Loo, as Guardian and Curator of Anna Van Loo, v. Osage County, Appellant
• Court: Missouri Supreme Court

141 S.W.2d 805

346 Mo. 358

Emil Van Loo, as Guardian and Curator of Anna Van Loo, v. Osage County, Appellant

No. 36999

Supreme Court of Missouri

June 28, 1940

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

Marion R. Garstang for appellant.

Jurisdiction of this appeal is vested in the Supreme Court because Osage County is a party. Secs. 5, 12, Art. 6, Mo. Const.; State ex rel. v. Gorsuch, 260 S.W. 455, 303 Mo. 295.

John P. Peters and H. Balkenbush for respondent.

(1) This being purely an action on a bill of costs incurred in connection with an ajudication of insanity as provided by law and instituted in the probate court, and not appealed from the jurisdiction of the probate cannot be inquired into in this collateral proceeding to enforce payment of costs. Johnson v. Beasely, 65 Mo. 250; State ex rel. v Deposit Co., 316 Mo. 1078; Sconland v. Powers, 305 Mo. 415. (2) The bills of costs is conceded to be correct and that all steps have been taken in conformity with the law in such cases, and Osage County is liable for payment. Secs 500, 502, R. S. 1929; Cox v. Osage County, 103 Mo 385; Sec. 34, Art. 6, Mo. Const.; Secs. 448-507, R. S. 1929; Secs. 448, 489, 498, 500, 502, R. S. 1929; Cox v. Osage County, 103 Mo. 385; Redmond v. Railroad Co., 225 Mo. 721. (3) Where jurisdiction is conferred by the Constitution of persons or subject matter, such jurisdiction cannot be encroached upon by the Legislature or the judiciary. State ex rel. Cave v. Tincher, 258 Mo. 1; State ex rel. York v. Locker, 266 Mo. 385.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an appeal (advanced on the docket) from a judgment for $ 84.80 against Osage county. The cause was tried on an agreed statement. In proceedings had July 14 1939, in the probate court of Osage county, Anna Van Loo was found to be a person of unsound mind, and Emil Van Loo, respondent here, was appointed guardian and curator. Appraisers were duly appointed, but no property was found and they so reported. Thereupon, the guardian filed petition alleging that "Anna Van Loo has no property, real, personal or mixed, and that therefore she is unable to support herself; that there is no person lawfully charged with her support capable or able so to do; that the said Anna Van Loo was on the 14th day of July, 1939, duly adjudged to be a person of unsound mind in the probate court of Osage county, Missouri; that the said Anna Van Loo cannot safely be permitted to remain at large with safety to herself and the community in which she resides; that it is necessary to incarcerate the said Anna Van Loo in the state hospital at Fulton, Missouri, for treatment and confinement." The court found the petition to be true, and made an order "that the said Anna Van Loo be confined and transmitted by said guardian to the state hospital number one at Fulton, Missouri, for confinement and treatment, as a county patient; and it is further ordered that a bill of costs of all the expenses connected therewith, including the costs of the proceedings in the probate court, be certified to the county court of Osage county, Missouri, for payment. It is further ordered that a certified copy of the proceedings in said cause be transmitted to the county court of Osage county, Missouri."

It was agreed that the bill of costs (running, without objection, in the name of the guardian as claimant), amounting to $ 84.80, was certified to the county court (August 7, 1939) for payment; that payment was refused, and an appeal taken to the circuit court. It was agreed that the "information and the proceedings had thereon and said insanity hearing held by said probate court, fully complied with all the requirements of Sec. 448, R. S. 1929 (Ann. Stat., p. 281), and subsequent sections relating to insanity hearings in the probate court, and that all steps required by said sections were properly taken."

It was agreed that Anna Van Loo had no property, and that no one was liable for her support at the Fulton state hospital, and that "the services charged for in said bill of costs were rendered by the parties claiming fees; that the attorneys, John P. Peters and Henry Balkenbush (named in the bill of costs) were duly appointed (by the probate court) to represent said Anna Van Loo at said hearing, and that the sum of $ 25 was allowed them by the court and taxed as costs for this service; that the witnesses were subpoenaed and testified; that the sheriff performed the services for which he has charged; that the probate court performed the services for which it has charged."

Counsel for the county, in his statement, says that the county court refused to pay the bill "on the ground that exclusive jurisdiction to hear insanity cases and commit insane persons to the state hospital as a county patient was vested in the county court, and that the probate court had no authority or jurisdiction to hear insanity cases and commit insane poor to the state hospital and that the jurisdiction of said probate court was dependent on it first being shown that the subject of the inquiry was possessed of property."

These questions are presented: Is the jurisdiction to hold a sanity inquisition of a poor person, as defined by law, exclusively in the county court or is such jurisdiction concurrent in the county and probate court? and if the probate court has such jurisdiction, has it also the authority to commit, at public expense, a poor person, adjudged to be of unsound mind, to a state hospital?

Counsel for appellant in his brief says: "For many years it has been the practice in Osage County to hold all insanity hearings before the probate court. If it was found that the subject of the inquiry was insane and in need of confinement in a state hospital and that he had no property sufficient to support him at said hospital, the probate court made an order that the patient be committed to the hospital as a county patient. The commitment was presented to the county court who furnished the necessary funds for the advance payment of board and the patient was conveyed to the hospital. Thereafter the county regularly paid the board of the patient and the probate court certified to the county court a bill of costs for the proceeding in the probate court which was always paid. . . However, the State Auditor, upon making the county audit, challenged the procedure and threatened that if any further costs were paid in that manner that they would be charged up as illegal payments and the county court charged up with a shortage of that amount."

There can be no doubt about probate courts having jurisdiction to hold sanity inquisitions. [Constitution, Sec. 34, Art. 6; Sec. 448, R. S. 1929, Ann. Stat., p. 281; Cox v. Osage County, 103 Mo. 385, 15 S.W. 763; Redmond v. Quincy, Omaha & K. C. Railway Co., 225 Mo. 721, 126 S.W. 159; Ex Parte Zorn, 241 Mo. 267, 145 S.W. 62.] The probate court procedure in sanity inquisitions is set out in Secs. 448 et seq., R. S. 1929, Ann. Stat., pp. 281 et seq. Sec. 448 provides:

"If information in writing, verified by the informant on his best information and belief, be given to the probate court that any person (Italics ours) in its county is an idiot, lunatic or person of unsound mind, and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury: Provided, that if neither the party giving the information in writing, nor the party whose sanity is being inquired into call for or demand a jury, then the facts may be inquired into by the court sitting as a jury."

Sec. 448 has come down from the act of 1817 of the General Assembly of the Territory of Missouri. [1 Missouri Territorial Laws, p. 507.] In the revision of 1899, what is now Sec. 448 was Sec. 3650, and was the same as at present except that verification was not required and there was no proviso. In 1903 (Laws 1903, p. 200) a proviso was added as follows: "Provided, that the probate court shall not have jurisdiction to inquire into the insanity of any person who is the owner of no property." The proviso of 1903 was held to be unconstitutional and void. [Redmond v. Quincy, Omaha & K. C. Railroad Co. (March, 1910), 225 Mo. 721, 126 S.W. 159; State ex rel. Crouse et al. v. Mills et al. (December 17, 1910), 231 Mo. 493, 133 S.W. 22.] In 1913 (Laws 1913, p. 94) the 1903 proviso was stricken from the section and the present proviso enacted. In 1917 (Laws 1917, p. 102) the section was again amended to require the information to be verified. There have been no changes since 1917.

Sec. 449 provides for the filing of the information in vacation of the probate court. Sec. 450 provides for notice to the alleged insane person, service thereof, and for the appointment of counsel, in the event no counsel appears, and it is provided in this section that the court shall allow to such appointed counsel "a reasonable attorney fee for the services rendered, same to be taxed as costs in such proceeding." Sec. 452 provides for the appointment of a guardian in case the alleged insane person is found to be of unsound mind.

Sec. 454 provides: "When any person shall be found to be insane according to the preceding provisions, the costs of the proceedings shall be paid out of his estate, or, if that be insufficient, by the county."

Sec 498, R. S. 1929, Ann. Stat., p. 301 provides: "If any person, by lunacy or otherwise, shall be furiously mad, or so far disordered in his mind as to endanger his own person or the person or property of others, it shall be the duty of his or her guardian, or other person under whose care he or she may be, and who is bound to provide for his or her support,...