*1 510 we cannot proceeding entry, minute the second same must really We ordered. entry that was
inquire what was into finally stands. as it the record take ob- it will be Statutes Revised section By reference either can be taken proper case appeal that an served appellate trial court or bond, but the appeal an without allowance mere which case the bond, in such may dispense with relator, there- purpose supersedeas. appeal would act evident- bond, approve trial court have the fore, seeking to -of to dis- the court or were this done thought that were ly with the e., i. re- supersedeas, as a act bond, appeal would pense with a father, here- relator him, foster turning the over to child sult posses- found child was judgment finds that the in. But the allowable and if were even the mother and sion of by order, this dispensed with accepted and a bond been allowed parent. other turning child over to the not result would possession the status and leave have been to only result would where it was. the child it should issued and improvidently writ The alternative Bland, concur, J., in result.
quashed. All It is so ordered. Mary Smith, Re of Martha Appellant, v. Estate Baker, spondent. (2d) W. 147. S. May 20, City Appeals. 1929.
Kansas Court of *3 German, c& Hull German and appellant. Shultz & Owen for Groves, Wanger respondent. Wathins <& for BARNETT, appeal C. This is an from an order of the circuit Missouri, county, whereby of Buchanan the trial court sus- appellant’s a motion to dismiss the tained from an order of of that order of The. appellant’s overruled motion to dismiss the in the mat- Smith, ter of Martha B. a of unsound mind.
Clark H. Smith and Martha B. Baker were married in Los Angeles, California on 1, November A 1899. few months after marriage Mrs. City, 1917, In Missouri. they in Kansas their home established malady in the loss of resulted was stricken a Smith sanitariums and by her husband in various placed reason. She was Asylum 2, finally placed No. for 1920, State she Missouri, kept as'a Joseph, has ever since where she St. patient been a in the During Mrs. Smith has patient. the time that Smith has residence asylum Joseph, St. Clark H. maintained August 1923, City, 13, the husband filed On Kansas Missouri. verified information a Smith of Buchanan alleged is a resident which it was that Martha person of mind property, is a unsound possessed of day in- On her own affairs. incapable managing is- order notice probate court formation was filed the made be taken required by law, the cause B. Smith sue to Martha as hearing day August, jury on 18th up for issued the sheriff’s The notice was to hear the cause. summoned day August, 1923, the 13th recited that it served on return delivering copy Martha B. Smith delivering true Hospital No. superintendent of State copy Thompson, Dr. true day August, the clerk of issued 2. On 16th appears as summons, follows: jury the sheriff’s return thereon command, I this venire “In have executed obedience to facias jurors summoning following persons within named trial, mentioned to-wit: Sanborn, Lodholz, 3. Ben Dolan, J. Fred
“1. 2. Chas. Wm. Levi, Hess, Spear, Story, 6. 7. Chas. Grimes, B. H. 5. Sam Joe 4. Griffith, Hanley, 11. Austin, J. J. Wolff, P. 10. C. 8. M. 9. Joe *4 Karns, W. Oatman, Diddy, Avery A. Tarvin, L. 12. P. H. H. O. J. -. Fee, $ Edson.
“W. H. Kueker, County, Mo.
“Sheriff of Buchanan “By Deputy.” H. H. Darbell, Sanborn, of Fred through names pencil A line been run at the on sheriff’s return time Hanley A. Kabka J. J. and J. appeared before and numerals the trial the circuit twelve names. 1923, again made an order August
On jury county, Buchanan Mis- summons to the sheriff issue day souri, eighteen jurors, entered of on the court record for and an order which is as follows: Missouri, and here comes sheriff
.“Now Smith, showing proper B. service. to Martha notice returns King and Homer be by the court is ordered it Now liere during hear- B. Smith for said Martha hereby appointed counsel insanity. alleged as to her ing on the information insanity alleged inquiry as to the "Now here the matter coming heard, informant comes now the on to be Martha B. Smith 133) (page King appearing as counsel person Homer and according duly jury summoned B. Smith and comes also a Martha Lodholz, Grimes, R. Dolan, Ben law, William J. Charles to-wit:' Levi, Austin, Hess, Spear, P. M. Joe Story, H. Sam Joe Charles good Tarvin, Oatman, H. Wolff, Griffith, L. P. twelve C. B. O. and men, try cause, duly sworn said and the matter and lawful who are being jury having and heard all the evidence touch- submitted Smith, ing B. retired to the condition of the said Martha of mind deliberation, and, their returned into the consider verdict after due cause, following jury in entitled We, verdict: the above court the B. mind in- person find that Martha Smith is of unsound managing capable of her own affairs. Joseph
"(Signed) Spear, Foreman.” adjudged by "It is therefore B. the court that Martha Smith is a managing affairs, incapable unsound mind own adjudged hereby is ordered and H. that .Clark Smith and is appointed guardian Smith, subject Martha B. insane, the said giving Missouri, unto $6000, bond State the sum of con- required by ditioned as law.”
Therefore, qualified, Clark H. Smith an inventory, filed and made annual settlements. In made an order guardian husband ground was removed as on the that he a non- resident of the State of Missouri and had been divorced from his ward. The appointed Downey court then J. Joseph, one John of St. Missouri, as successor, the husband’s qualified who in due time acting guardian who is now the of Martha B. Smith.
Plaintiff filed a motion in the court of Buchanan which is as follows: Mary
"Comes now Baker as the sister of said Martha Smith, and as her appointment curatrix under county, Missouri, sitting of Jackson at Kansas City, alleges' that all o’fthe herein are void and of inquire effect because this court had no into the *5 sanity Smith, jurisdiction per- said Martha B. and had no son no-jurisdiction appoint guardian estate and a- herein. Baker, Mary B. prays
"Wherefore said the court to dismiss this proceeding may and to such other further' action as take and necessary premises.” advisable the on.January 14, 1928, Thereafter and on this hearing was had probate it motion and the record an in which court entered of order insanity alleging was that the information of Martha recited when the with B. Smith Smith was served filed, was and when Martha B. by sheriff, tried before notice the and the information was when jury, Smith, B. Buchanan said Martha was in the the sheriff, court obtained was with the served notice jurisdiction full jurisdiction subject-matter case and saidrMary Smith; Baker who filed the motion over Martha B. B. had Smith, B. and therefore had no of Martha interest in the estate was overruled. right the motion no and that to maintain the motion Downey, as Mary appealed J. B. and John From order Baker this appeal, dismiss guardian, filed circuit court motion alleged as follows: grounds as therefor acquired! county, Missouri, “1. Buchanan That the court of subject-matter, and of and now has exclusive Smith,. person B. insane. of the said Martha said determine hear and
“2. That this court has no cause de novo. ‘‘3. appeal That lies from the
this case. appellant, Mary “4. Baker, That B. is not such a as is ’’
designated by having statute such case. ' hearing Said motion down for came was set when the motion judge following on to be heard the circuit made statement: applies “Let the record show that the evidence heard in case may merits of bearing have either the motion or the what the case.”
Upon hearing Mary in the it was circuit court shown B. Baker, probate court, appealed filed motion in who who Smith, of Martha B. a person was sister the circuit court mind; appointed’ unsound that she had been and estate of Martha Smith Jackson county, shortly court of before she filed the motion Downey defendant’ John J. introduced evi- Buchanan appears that Martha without from which it contradiction dence county, at she of Jackson- the time husband was resident Smith’s county; was asylum in that she Buchanan was incarcerated asylum and has been placed in she was" the time put upon himself was husband 'mind since. The unsound ever since has been a then' and ever testified that he stand and signed he he testified that county, of Jackson resident was, a resident his wife alleged it was wherein information that this counsel was advised he because *6 necessary in order inquisition upon secure the question the of sanity. wife’s At the close of the evidence court entered or- der which is as follows: ‘ n ‘Nowon 28th day July, being day 1928, 66th M!ay,1928, term of this the above cause entitled came for on decision, having plead- heretofore submitted to court on ’ evidence, ings adduced, and filed and after due consideration the court finds from the evidence that court of Buchanan county, Missouri, jurisdiction of the person obtained and of the ,and Smith, insane, jurisdiction B. had full estate Martha of the subject-matter insane, by B. adjudge the said Martha Smith by day made and entered said on 13th coui’t August, 1923; finds that B. Smith was in that the Martha court county, Missouri, at the time the information was filed Buchanan aganst her, charging person of mind being unsound and her affairs; legally incapable notice was managing own and her county, Missouri, by Buchanan properly her said served by jury properly held, was county, and that a trial sheriff said Missouri, county, had full of Buchanan and guardian appoint and to declare her estate. person and of her information time said was finds that at the court further “The Missouri, county, 13th on the Buchanan probate court of
filed in the pending was 1923, proceeding filed day August, further insanity of said question of having any pending in proceeding Smith, other action B. and no Martha guardian purpose appointing for the other court B. Smith. estate of Martha court that adjudged considered, ordered and is therefore “It probate court of Baker, Mary filed B. proceeding of court, be and Missouri, taken county, and here dismissed. the same is now J. that John adjudged ordered, .and decreed is further
“And it acting guardian of the qualified duly Downey, appointed, is the insane, Smith, B. Martha of the said person and estate Missouri, in of Buchanan' action of estate Downey appointment John J. hereby affirmed. insane, be, the same Smith, of said Martha $-, case, taxed of this the costs “It ordered that is further issue shall Mary that execution B. Baker and paid said ' ^1'1^ therefor.”' A for new trial filed Mary motion overruled appealed. Baker has
Opinion. Section Revised Statutes provides circuit respective courts in the they counties in may be held shall *7 power have and as follows: . . Fourth-appellate jurisdiction from judgments and of county orders courts, probate courts, justices peace, in of all expressly prohibited cases not by law, possess and shall a superintending control over them a general oyer control executors, administrators, guardians, curators, minors, idiots, persons lunatics and of unsound mind.” Supreme The Court has held that under this statute is there a any of from judgment final or order made a court, and that it matters not whether judgment such final or order is in the estate of an insane or in some other branch pro- of jurisdiction. bate re Guardianship Angela [In of 307 McMenany, Mo. It is only necessary therefore 98.] determine whether or not the order of the was a final order. The fact that finally disposed of the motion conclusive. is not Sustaining over- ruling disposes motion finally a motion, continuance yet such an order is a final order. We think a not this was final order. petition The alleged court did not have alleged insanity proceedings, therefor, over of the and as reason upon Such motion appear of the record. a facts that did not the face nobis. coram law writ error purpose of the common serves the proceeding and serves somewhat independent Such motion is a equity by a bill in served is in court of law that a purpose same a final is thereon order judgment. The a to set aside judgment. judgment 310: “The 2 R. C. Ia in thus stated is The rule distinguished final, as is itself judgment the former reversal higher a reviewable interlocutory, and is itself from judgment former course, of affirmance such.” Of character. same is of the is obsolete. We know coram nobis writ of error State a
In this writ, in not issue the why Missouri court could no reason alleges judgment which motion to set aside a practice actual upon a mere notice nobis tried writ error coram is grounds for a actually issued, party. is not but all of opposing The writ to the may be writ common law could obtained under the relief which at cus upon trial of the motion. It is this therefore in State obtained tomary refer a motion as a error coram nobis. to such writ proceeding equity. under writ the motion at law in and not coram vobis lie The writ error coram nobis the writ error error, for the correction of errors of fact. It is called a writ of coram King’s proceedings nobis in Bench because the record and are stated 518 English “before us.” !It was a fiction of old to remain
in the writ supposed preside king court. law that king pleas, supposed of common where In the court vobis, a writ of error coram preside, the writ called because the proceedings are stated the record to remain “before record 5 ; 2 meaning king’s justices. Prac., 234, Saund you,” Arch. [1 1125 ; Fugate 94 ; Dunlap’s Prac., v. 85 Miss. Teller 101A ; State, only referred to the form Wetherell, Mich. The difference v. 49.] of which exists in the neither United to each appropriate States; is no difference between a writ of error and as a result there ¡corato country. error coram vobis S. nobis a writ of [U. Cas., Plumer, No. & Fed. 16056.] only examining origin into the writ object is to
(demonstrate
are
law
thereunder
and not
conclude that
trial of such a motion
(equity.
therefore
We
*8
by
judge,
supported
it
finding
of the trial
if
is
of fact
sub
the
evidence,
appellate
in the
court.
writ
is conclusive
The
lies
stantial
though
proceeded in a case as
a fact which was
a court has
when
right
proceed
exist,
existed when
did
to
to
it
material
its
entirely
to exist
defeated
the absence
the fact assumed
the
when
proceedings.
a valid result
its
It
of the court
reach
does
power
to
arising
jury, referee,
errors
on facts submitted
lie to review
to a
mot
sitting
Gould,
jury.
App.
v.
131 Mo.
to
court
as a
<or
the
[Cross
585
; Simms
It is the not be prohibition proceeding from in an upon restrained writ action ground necessary its that a certain fact does not has a exist. reason is that the trial court to take evidence has held to determine whether or not the fact exists. Yet grounds prohibition sought upon respondent if such necessary jurisdictional exist, pro admits that fact does not then l. Duncan, App. lie. ex v. Mo. c. hibition will rel. [State 546, 547.]
"Wehave therefore concluded that ap- burden was *9 pellant only to the fact establish not that Martha trial B. Smith county was not a resident of Buchanan at the time was she mind, adjudicated to probate be unsound but that court county fact, showing might did try Buchanan not and that this by evidence, have been the introduction of made oral there is nothing judgment probate of the court to indicate that that However, question respondent tried. fact since the introduced affirmative and uncontradicted evidence Smith was Martha not a resident Buchanan this was tantamount a claim to probate adjudicated otherwise, that the court not had had ex- jurisdiction upon its theory ercised that such was not residence necessary. probate appellant held that court no had interest in the Smith right
estate had no Martha therefore to maintain the motion. rule is error coram nobis will writ issue only record, at the instance party of a or of in privity one judgment a injured by the who will derive person of a him, lunacy A L. being R. C. see. recalled. from its [2
benefit 264.] per a an administration of estate of dead proceeding is unlike ad improper appoints an probate son. When the court of an ap not even will probate proper court of the ministrator point appointment been vacated. until first has an administrator creditors Heirs and appointment. second There is no reason for the impossible complain appointment of the first and it have a to^ when person involved. Not so for the interests of the dead to be n compos mentis. non guardian appointed person been for a who has can living. She B. Smith is still Martha has no heirs because she she assignees welfare because have who are interested no incompetent assignment. incapacity make an Because of her she prosecute guardian by appointed cannot a motion herself. Unless a proper may prosecute may kind of motion it prosecuted law, judgment at all. If this is then a of a jurisdiction practically court without is as efficient as the jurisdiction. of a court with full We are accord with the view that appoints guardian, executor, when a or administra charge tor who takes appointment, estate virtue of that then representative no other appointed may another seize question the estate or conduct representative of the first appointed until removed, he has though even the proceedings appointment his wrong were filed very This is a wholesome rule calculated to avoid requires pro confusion. It priety appointment of the judicially first to be determined before the transfer of the estate and the duties of the office. But when the reason of ceases, the rule If the rule ceases. court of had appoint guardian fact of the and estate of Martha B. Smith, appointee then the that court was at most a guardian cle with an apparent title faoto to the office. proper The court jurisdiction, ex necessitate power appoint guardian for the of unsound mind if appointment the first void, was in fact though even fact defeated the court of first appointment did not appear of representative record. In such case the appointed who is proper court could not seize the estate nor interfere with the actions of the appointed first causing without first ap pointment vacated; to be because the face of the record the appointment first entirely valid, and it is policy not *10 n law to .allow appointees each of the to decide for himself which is the appointment. valid That is a matter by to be determined the courts. depending Titles upon the record which was upon fair its will face upheld. be But if we went further and held proper that the
521 ,and so power him appoint invest with to not thus could validity appoint first question of represent ward as to the far the the the ment, position take the ridiculous that we would be forced to question its appointment void, had the to was one first in validity. succeeds establish appointee "We if second hold that jurisdic void want of first was ing appointment the fact that may proceed exercise appointment in be tion his then court of of his office without powers subject all duties all and is the first if establish that appointment. But he fails further ap thereby also that his own he establishes appointment was void holding in v. pointment DeJarnett was void. This is the effect of 136 App. Mo. App. Young, 45 415. of Smith v. Harper, Mo. case there 65, holding. not in In that was no conflict our case adjudicated showing not that assumed but had trial court had Young, has necessary jurisdiction. Smith v. fact its to sustain Smith, l. c. by App., 197 Mo. partly of overruled case In re 207. questions only goes
All said that we have to the as to whether or appeal might probate court, not taken from be whether or jurisdiction motion properly not the invoked the original order, or was to set aside its whether filed it upon questions proper party. passing In assumed these we as a working hypothesis ground upon which was challenged proposition However, attacked ivas valid. that respondent, necessary to determine not the whether county jurisdiction by court of Buchanan obtained reason actually fact Martha B. Smith ivas that 444, 1919, provides Section Revised that an information Statutes writing given person in its shall be to the court that a county lunatic, idiot, incapable is an unsound mind and provides managing 1919, his affairs. Section Revised Statutes duty county justice any judge it shall sheriff, peace, coronor, application to make or constable to the of its whenever such for the exercise of- any persons, ficer shall to be un- discover residents mind, mentioned, thereupon sound as section and that proceedings like shall ease of un- be had as information persons. parte Zorn, official In ex Mo. showed the evidence party adjudged when information to be filed, hospital was an unsound mind he inmate the State Joseph, Missouri, placed for the insane of St. he had been where private patient any adjudication he without was -in fact insane. have him were declared insane instituted property Jackson because he owned situated *11 522 private patient before was entered as a resided there he county. hospital Supreme in Court said:
State county holding was the have hesitation in Jackson “We that alleged insanity proper place inquiry peti- to of conduct into tioner, county place because that was the of his residence. One of the objects 19, chapter 2, pro- of of to article Revised Statutes is preserve . . property persons tect and of unsound mind. . of apparent Legislature guardians that that It intended persons appointed insane should be estates in their administered county property their residence where their is located and acquaintances likely where their friends and are to reside.” The court county held that the court of Jackson had the process to county. issue to be served Buchanan In Mills, Judge the case ex rel. v. 231 Mo. State Valliant separate opinion wrote a majority in which a court concurred. In that asylum county. case a woman was confined an in St. Louis While she was so confined her husband moved to State of Penn sylvania. She adjudged pérsoh was then .a be unsound mind county. court of St. Louis The court held. that Mrs. legal Crouse’s Pennsylvania residence was reason of the fact that her husband had become a resident of Pennsylvania, but that personally present she was county. in St. Louis The court called attention fact that the statute require does not'in terms that person county insane should be a resident of the and that probate court of St. county Louis pass her sanity. Judge Valliant then said: “I am speaking not now pauper an insane that would un- come der the CQunty statute, court under another person of a like person pauper. Mrs. Crouse who was not a such a If legal unsound mind had residence in this State another coun- ty doubtless the his residence would jurisdiction. have nonresident, But of a case if the court of the person is, where authority fact has no him, care of will take he wander where him- listeth without care for self or care community for the in which he is loose.’.’
In case of Wurdeman, State ex rel. v. App. 263, Mo. Appeals St. Louis Court of held that residence of the husband the. wife, the residence of continues to be residence even though asylum she is an inmate an elsewhere. The court requires held that the statute which allege the information to person county” “in unsound mind is its and the statute mak- duty ing it the of certain they officers to file information after dis- cover such county” of his highest “resident are in the de- pari gree in materia, no rule of construction could one be other; there- given from what effect different given an “in words gave jurisdiction fore, it was residence the court In this case county” residing in the meant its inquiry if a lunatic might proper to conduct such said if becomes another from his into wanders *12 when no in case home, perhaps from or when his absent might interfere; be county that this proceedings in his home prior safety citizens. of the the .necessary insane and for welfare of the the abrogate but not supplemented did statute court that our The held insanity &ases. regarding venue of chancery the rule the necessary deman, supra, was v. Wur ex rel. In case State the in county” what used “in its as that the words court to hold for the in 1919, the “resident meant Statutes section Revised is now court had the was that county” in that case it held because county of unsound to be adjudge a resident the jurisdiction to was adjudication the con although of the resident mind at the time opinion part that of the asylum But in elsewhere. an insane fined an circumstances ad that under certain suggested wherein it was actually in the might valid the defendant was be where judication in case county thereof, was involved the but resident not not a Mills, State v. The ex rel. not decided the court. ease of authority proposition if a of the is for the that nonresident supra, court has actually in the State the concerning sanity, opinion inquiry the an his to entertain by majority at least Judge Valliant in of the court concurred if had suggests another would be followed the defendant that rule any county in this State. resident parte Zorn, supra, unequivocally The case Ex holds that place of the residence of the defendant is the to con proper inquiry alleged insanity. Respondent upon duct into relies Osage County, Supreme case of v. 385. Cox Mo. Court only jurisdiction by in that case holds the exercise that length dependent upon subject probate court is of time the may inquiry county prior have in of the resided thereto. It place in true that court said it is one that that at the sufficient actually inquiry in county; time defendant but we reading only think from a of the case whole that the court held that length of time that he resided therein was immaterial. in nothing justifies We find the decisions of Missouri which may inquire conclusion question into sanity insanity upon showing the bare the defendant actually present showing go must farther. Some good why reason shown particular must be should exer every cise jurisdiction. its holding there is reason this^se .In contrary. relative, to the It is a monstrous interested doctrine laying upon of his hands member estate of unfortunate family, may fix advantage infirmity take venue of the order to adjudication or in suit himself. The of sane only consequence sane is not the which from exercise of the flows proceeding. lunacy in a The one marriage who stands nearest in to a of unsound mind blood may to be be the one the world who is least fitted all notoriety likely of the estate. That fact is at the have place Nevertheless, of residence! if a husband with ulterior motives may permitted may be to choose the he his un cause .where transported, wife fortunate to be there can little doubt any practical guardian. mind of man will as to who be the be "We county” lieve words “in its in section mean used 1‘ ’’ in its except exceptional circumstances, resident require grounds policy. a different public construction We further believe that where evidence shows that a husband or *13 other helplessly relative has caused a who is transported to another against there confined her will the against exception making any general circumstances are to the rule. We hold therefore court of Buchanan jurisdiction no adjudge Martha B. Smith to be a un- mind, sound and therefore appoint guardian; had no the records fail show to. that either the court or the cir- finding cuit court made a fact that she was resident of Buchanan county, but that an undisputed affirmative and showing was made respondent in this case that she was a resident of Jackson county; that the case, motion in being nature a writ nobis, error coram proper remedy by which to call to the court’s attention the error into which by assuming it had fallen jurisdictional fact which did exist. fact The motion is de- alleged fective. It should have the fact that Martha Smith was not resident of Buchanan inquiry time of the and that the court assumed it had but did not make find- ing of fact she was a resident county. However, of Buchanan the defect in the motion' was M'aived the defendant who volun- tarily went to trial the real issue. When a case so tried a motion alleges nothing. but conclusions is sufficient. [Rudd v. Rudd, (2d) 13 S. W. 1082.] agree We do not record shows only that the sheriff sum- jurors moned fifteen in court. no There is evidence to show whether three of the names on the return were stricken out before or after the return completed. presumption reg- ularity in the results a presump- part spoliation pencil marks are a which is tion that return. Lee, C., remanded. con- reversed and the cause
curs. opinion foregoing by Barnett,
PER C., CURIAM: The is here- by adopted opinion as the concur, except Trimble, court. All J., P. absent. Appellants. Little, Respondent, al.,
Allen W. et v. O. Widener 116. (2d) 32 S.W. May City Appeals. Court 1930.
Kansas *14 Gamble, Allen B. respondent. Browne and Browne & Allen