State ex rel. Pollard v. Brasher , 200 Mo. App. 117 ( 1918 )

OPINION.

STURGIS, P. J.

— The statute under which the probate court proceeds in adjudications of insanity expressly provides that the alleged insane person shall be notified of the proceedings unless the p'robate court order such'person to be brought before it. [Sec. 476, R. S. 1909.] The concluding clause of that section purports to authorize the adjudication without notice to the alleged insane party or requiring his attendance, provided the court spreads on its records the reason why notice or attendance is not required. This last provision was held unconstitutional by our Supreme Court in Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206, as being violative of the constitutional provision forbidding any person being deprived of his liberty or property without due process of law, which necessarily includes notice and opportunity to be heard. As we read that decision, however, it does not hold unconstitutional the provision dispensing with notice when the court causes such party to be brought before it at the hearing. The case just cited involved a proceeding which was commenced under the statute of 1835 which provided that the court “shall cause the person alleged to be insane to be brought before the court;” but when the trial was had the statute of 1845 was in force providing no more than that “the court may in its discretion cause the person alleged to he of unsound mind to he brought before the court.” Nothing whatever was said in the statute about notice and none was required unless the bringing of the party before the court was itself notice or its equivalent. This continued to'be the law until 1879 when the present statute was enacted. Speaking of the record by which the person was adjudged insane in the Hunt case under the statute of 1845, the Supreme Court said, l. c. 183, it “not only wholly fails to show he was notified in any way of that proceeding and that no reason was spread on the record for not bringing his body before the court, hut it also fails to show that after qualifying the guardian did anything whatever.” The court, however, there said, l. c. p. 176; “It must also be borne in mind that the statutes of 1835 required notice, that is, required the person to be brought into court.”

Likewise in the case of Bank v. Shanklin, 174 Mo. App. 639, 161 S. W. 341, the court held an insanity adjudication void where the record of such proceeding showed that the alleged insane person was neither notified of, nor brought before the court at, such proceeding. The court in no wise holds that the bringing of such party before the court would not constitute a sufficient notice or that the clause of the statute so providing is unconsitutional in not affording due process of law. State ex rel. v. Duncan, 195 Mo. App. 541, 193 S. W. 950, holds no more than that where the alleged insane party is not brought before the court and the court’s jurisdiction depends on the party being served with notice, then the valid service of a written notice is jurisdictional. The court in no way holds that bringing the party before the court is not itself notice.

In Crow v. Meyersieck, 88 Mo. 411, the court held that the notice given was void and in itself showed want of jurisdiction; but the court further held that a recital in the record that the alleged lunatic was present at the hearing (not merely as a witness as in Bank v. Shanklin, supra, in a proceeding to have his restoration to sound mind declared nor in tbe capacity of objecting to tbe jurisdiction) is sufficient notice to confer jurisdiction on tbe probate court and make tbe adjudication valid.

Tbe bolding of our courts that an adjudication of insanity, without giving tbe person notice of tbe proceeding so as to give bim an opportunity to be heard, is void as not being due process of law, is in accordance with tbe current of authority on that subject as shown in Evans v. Johnson, 23 L. R. A. 737, and cases cited both in the opinion and in tbe editorial note. All the eases dwell on the necessity of notice in such proceedings but no one would interpret such cases as meaning that such notice might not be waived nor should they be taken as bolding that notice means only a formal or even an informal writing giving tbe time, place and purpose of tbe inquiry, served upon tbe person to be affected, or verbal notice of like character.' In tbe West Virginia case, supra, tbe court said in speaking of tbe necessity, of notice in such proceedings that “almost as well might we convict a man of crime without notice.” Vet, tbe only notice given in criminal cases is the arrest and bringing tbe party before tbe court. It is usual in criminal cases that a warrant for tbe arrest states tbe nature of tbe proceeding and the court taking cognizance thereof; and so did the warrant in this case recite that: “Whereas, a statement in writing has been presented to tbe probate court of Pemiscot County, Missouri, by Jas. J. Long, Public Administrator and a citizen of Pemiscot County, Missouri, stating that one Sam Pollard, is insane and incapable of managing bis affairs. These are therefore to command you to take tbe said Sam Pollard and bim safely keep until tbe Probate Court shall convene and inquire into tbe sanity of said Sam Pollard.”

All tbe cases we have been able to find where this point is discussed bold that tbe compliance with tbe statute requiring, tbe alleged insane party to be brought into court under court process as a party to tbe proceeding, is valid and affords sufficient notice. In fact • tlie statute of most of the States provide for notice by bringing the party into court. In Re Lambert (Cal.), 55 L. R. A. 856, while bolding that a proceeding for adjudging a person insane, based on a statute without any provision for notice to the alleged insane person, is void as depriving such person of bis liberty and property without due process of law, the court said; “The case before us does not involve the right of the State to provide for the summary arrest of a person against whom a charge of insanity is made, and his temporary detention until the truth of the charge can he investigated. Such arrest would itself he a notice to him of the charge, under which he would he afforded an opportunity for a hearing thereon.” The Supreme Court of Indiana in Nyce v. Hamilton, 90 Ind. 417, 418, said; “The statute provides that under the proper written statement being filed, such court shall cause such person to he produced in court, and shall cause an issue to he made hy the clerk of such court, denying the facts set forth in such statement; which issue shall he tried hy a jury, to be empanelled under the direction of said court. If in this case appellant had been thus ‘produced in court,’ it could not he said, with reason, that additional notice would have been required to give the court jurisdiction. This mode of acquiring jurisdiction over the person is fixed hy the law making power, and we know no reason why it is not sufficient, or upon what ground it can he claimed that the Legislature has no authority to prescribe it.” This holding is followed hy the same court in Martin v. Motsinger, 130 Ind. 555, 30 N. E. 523, where this is stated: “But, while this is true, and while there may he a valid inquest and judgment in such eases, without notice, when the party is present, it is otherwise when he is not present, and is not represented hy someone authorized to appear for him. . . . He is entitled to his day in court. When he is actually brought in, or voluntarily appears, he has the right guaranteed to him hy the Constitution. If, however, he is not brought in, and the court, after an ex parte hearing, and without notice to Mm of any chara ctei*, and without his knowledge, proceeds to hear and determine the matter, it cannot be said that he has had his day in court.” In Fore v. Fore, 44 Ala. 478, the court, speaking of a proceeding of lunacy under the statute of that State, states the law thus: “In this case the requisitions • imposed by the State seem to have been very precisely pursued. The writ of arrest of the lunatic, or .the alleged incompetent, was duly served upon him. This completed the jurisdiction of the judge of probate, and brought the defendant into court; no other notice is required by the statute. . . .No doubt a party is entitled to notice of proceedings against him to have him declared a lunatic, or a person non compos mentis. But that is not the condition of this case. Here the party had the notice that the statute prescribes.” In a later case, Croft v. Simon, 24 Southern 380, a proceeding under this same Alabama statute, providing that the judge shall “issue a writ directed to the sheriff to take the person alleged to be of unsound mind and if consistent with his health and safety have him present at the trial,” was attacked because written notice was served on the party but he was not produced in court. The court held that such service of notice would dispense with producing him in court. This case reached the Supreme Court of the U. S. Simon v. Croft, 45 Law Ed. 1165, and was affirmed, the court quoting the Alabama statutes axxd citing Fore v. Fore, supra, as holding that the service of the writ was all that was required and brought the defendant into court. The court further held that, while the alleged lunatic was not arrested and not produced in court on account of his condition, it would not be inferred that he was prevented from being heard in his own defense. In an early Kentucky case, Lackey v. Lackey, 47 Ky. 107 (8 Ben Monroe) where no notice was given to the alleged insane person the court uses this language: “Where, however, the defendant is brought into court, and the inquest held in open court, neither notice nor writ is necessary. Persons of unsound mind are under the protective care of the Chancellor, whose duty it is to watch over and guard their interest scrupulously. Being in court, the presumption is, this duty was discharged, and the court satisfied of the propriety of holding an inquest, without any affidavit setting forth facts to authorize the proceeding. ’ ’

If the statute prescribes notice to the alleged lunatic, or other party for him, and does not provide for bringing him into court, then the statute governs and the presence of the party in court will not cure the defect. [Morton v. Sims, 64 Ga. 298.] And the presence in court of the insane party as dispensing with notice applies only when the party proceeded against is brought into court as a party to the proceeding in accordance with the statute and not where he is present merely casually or for another purpose.

That our statute governing this procedure, section 476, Revised Statutes 1909, was fully complied with in this case I think is clear. The order of the court and writ to the sheriff are regular and under the hand and seal of the court, reciting therein the complaint that Sam Pollard is insane and incapable of managing his affairs and commanding the sheriff to take and keep him nntil the probate court shall convene to inquire into his sanity. The sheriff’s return shows that he executed the writ by having the body of Sam Pollard before the judge of the probate court on March 7, 1917. On that day the inquisition was held by a jury and the adjudication was made. This shows that Sam Pollard was brought before the court on the day of the adjudication and that is sufficient. While there is no recital in the judgment that the alleged insane person was present at the inquisition, the sheriff’s return to that effect is of equal dignity and force. [Cloud v. Inhabitants of Pierce City, 86 Mo. 357, 367.] Besides the motion to quash the proceeding is not based on the ground that he was not present but that he was not voluntarily present. There can be no inference that he was denied the right to be heard in his own defense, no more than if he had received five days’ notice under sections 476 and 1790, Revised Statutes 1909. [Conway v. Robinson, 178 S. W. 154.] When it is shown that a person is brought before a court on the day the inquest is held on a charge of insanity and for the very purpose of having his sanity inquired into the presumption of right acting is indulged that the court afforded him an opportunity to be heard. . Moreover, probate courts are courts of general jurisdiction in probate matters including the appointment of guardians of persons of unsound mind. In the absence of reqitals of record or other competent proof to the contrary, the court must be. held to have proceeded in accordance with the law and to have taken all the steps and found all the facts necessary to uphold nits judgment. [Johnson v. Beazley, 65 Mo. 250, 256; Henry v. McKerlie, 78 Mo. 416; MeKenzie v. Donnell, 151 Mo. 431, 450, 52 S. W. 214; State ex rel. v. Dickman, 175 Mo. App. 543, 550, 157 S. W. 1012.]

The above cases sufficiently answer the point that it. is not shown that the person making the complaint as to Pollard’s insanity is of kin or interested in his estate. As said in the last cited case, the statute, section 474, makes no such requirement, but if'a mere stranger may not institute the proceeding but only one having an interest in the estate or personal safety of the person proceeded against, we cannot conclude that the informant had no such interest. As held in such case, that is a matter for the probate court, “but that question is not here open to our inquiry.” This is a cer-tiorari proceeding which brings up the record only of the probate court and the circuit court could only quash the record for errors appearing on such records. The presumption of right acting must be indulged and that includes a finding that the informant was entitled to institute the proceeding. [School District v. Yates, 161 Mo. App. 107, 142 S. W. 791; State ex rel. v. Wooten, 139 Mo. App. 221, 122 S. W. 1101; Conway v. Robinson, 178 S. W. 154.] Besides, it is shown on the face of the records that the informant is the public administrator of the county and by section 299 is also public guardian and by section 302 be is required to look after the personal estates of insane persons. This clearly qualifies bim to be an informant in this kind of a proceeding.

The statute, section 474, now requires the information to be sworn to, Laws 1917, p. 102, but such was not the ease when this proceeding was bad.

The proviso added to section 474 by Laws 1903, p. 2Q0, making the jurisdiction of the probate court in insanity . proceedings depend on the person proceeded against being the owner of an estate, has been declared unconstitutional and the lack of such allegation is not material. [Redmond v. Railroad,. 225 Mo. 721, 126 S. W. 159.]

Finding no fatal error in the proceeding in the probate court adjudging Sam Pollard a person of unsound mind the judgment of the circuit court declaring the same void should be and is reversed.

Farrington, J., concurs. Bradley, J., files dissenting opinion.