140 Mo. App. 545 | Mo. Ct. App. | 1909
(after stating the facts).— Counsel for appellant relies on section 1674, Revised Statutes 1899, which by the fourth subdivision confers upon the circuit courts appellate jurisdiction “from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not ex
What is now subdivision 4, of section 1674, R. S. 1899, has appeared in our statutes in substantially the same words for many years. In the Revised Statutes of 1855, it appears as the fourth clause of the eighth
In the Matter of Marquis, 85 Mo. 615, the relator filed an information in the probate court of Howard
In the case of Coleman v. Farrar, 112 Mo. 54, the question was over the right of appeal from orders approving or disapproving the settlements of a guardian of a person adjudged to have been of unsound mind. In this case Judge Gantt, who delivered the opinion of the court in banc, after holding that even if an appeal was not allowed, it Avould not affect the jurisdiction of the probate court in the matter of such settlements, uses this language at page 72: “But there is a spirit pervading our statutes to allow appeals from all final judgments of courts, whether of limited or general jurisdiction. As before said, our present uniform system of probate courts was provided for in the Constitution of 1875, and the statute of 1877, which was enacted
Our Supreme Court, in the Marquis case, supra, l. c. 617, citing Dutcher v. Hill, 29 Mo. 271, says that, “The proceedings under the law concerning insane persons are not like a final judgment, which' is unalterable after the end of the term at which it was rendered. They are in fieri, like a cause pending, and irregularities in them or defects of the record may be obviated at any time so long as the lunatic is under the control of the guardian appointed for him. It was competent for the court to discharge the lunatic at any time from the care and custody of the guardian so soon as it was informed of the irregularity of the proceeding.” This would seem to mean that a finding on the fact of lunacy is not a final judgment.
In State ex rel. v. Jackson, 93 Mo. App. 516, this court held that while the right of appeal from an adjudication of insanity is by no means clear, as the jurisdiction of the probate court in the case was shown to be lacking on the face of the record, the remedy by certiorari, which was the remedy invoked in the case, was appropriate. In this Jackson Case, the attention of the court was not called to this 4th subdivision of section 1674. But the decision falls far short of establishing the right of appeal.
Section 1674 was before this court again in the case of Barnett v. Pemiscot County Court, 111 Mo. App. 693, where will be found a very elaborate examination and complete collection of the authorities. Judge Nortoni, construing section 1788 with section 1674, holds that an appeal will lie from the county court to the circuit court, only when the judgment or order appealed from is judicial and triable anew in the circuit court, and that an appeal will not lie in a matter or proceedng not judicial in its nature.
It must be admitted that chapter 29, of the Revised Statutes of 1899, contains no provisions whatever for an appeal from the finding and adjudication of a probate court, declaring a person to be of unsound mind, and it has been said by the Supreme Court of the State, in the case of Cox v. Osage County, 103 Mo. 385, l. c. 389, that the jurisdiction to appoint guardians of such persons as may be found to be of unsound mind, being vested in the probate courts by article 6, section 34, of the Constitution, “the manner of exercising this jurisdiction, as well as the whole procedure in regard to the persons and estates of insane persons is regulated and prescribed by chapter 116, Revised Statutes. 1879.” This is now chapter 39, Revised Statutes 1899.
Our Supreme Court, in State ex rel. Grover v. Fowler, 108 Mo. 465, in passing on the question as to whether an appeal lay from the order of a probate court ap
This court, in Elick v. Schenk, not yet officially reported, but to be found in 117 S. W. 93, held that an order refusing to appoint a certain person administrator is not appealable, because not within the statute, but holding this was in conflict with the decision of the Kansas City Court of Appeals in Burge v. Burge, 94 Mo. App. 15, certified the case to the Supreme Court where, as reported 212 Mo. 275, the Supreme Court held with this court, that such an order was not ap-pealable1, following Grover v. Fowler, 108 Mo. 465, and citing approvingly State ex rel. Mitchell v. Guinotte, 113 Mo. App. 399; State ex rel. Pinger v. Reynolds, 121 Mo. App. 699, as holding that in granting letters of administration, etc., the probate court could be controlled by mandamus and not by appeal — the Supreme Court disapproving the reasoning in the Pinger Case, however, in which it was held that any appeal would also lie. Says Judge Gantt—referring to Grover v. Fowler, in the Flick Case, “As- pointed out in that case, the
It will be noticed that the reasoning in the decisions is along the line of working out the general intent and spirit of the statutes themselves, not interpreting literally but to accomplish the object thought to have been had in view. While the maxim “Qui haeret in litera, haeret in cortice,” is peculiarly applicable to the interpretation of contracts, it is not without force when applied to the interpretation of laws and its spirit has been followed by our courts with reference to statutes, with very great frequency. It must be borne in mind that in considering cases under the statute relating to administrators and curators, the fifteenth subdivision of section 278, Revised Statutes 1899, while granting a sweeping right of appeal in all cases other than those enumerated in the fourteenth subdivision preceding it, expressly confines that right of appeal “in other cases where there shall be a.final decision of any matter arising under the provisions of this chapter.” So too, in the chapter concerning, guardians and wards, chapter 84, appeals are expressly allowed by section 8535, from final judgments “in like manner and with the same .effect as appeals are allowed in cases of administration of estates of deceased persons.” As before remarked, chapter 39, which relates to insane persons, not only appears to be complete in itself, but as held in the case of Cox v. Osage County, supra, is the exclusive legislation concerning the ascertainment and adjudication of insanity and the management of
It is not to be held, for a moment, that failure to meet and provide for these matters, has, in all the years of our existence, both as Territory and State, escaped notice by our lawmakers, if it was in contemplation by them that an appeal should lie. Many cases have been decided by our courts in which the absence of any such provision has been noticed. It is incredible that our Legislature, in the body of which a large number of lawyers, many of great learning and eminence, have been conspicuous, should have failed to notice that no direct provision is made for an appeal. We must assume that they, knowing this, did not consider it wise to change the law.
We are, therefore, compelled to the conclusion that the provisions contained in section 1674, concerning appeals from probate courts, cannot be held as applicable to appeals in cases arising under section 3650, Revised Statutes 1899. We observe here that we are considering appeals arising under section 3650, and under sections 3651, 3652, 3653 and 3654 alone, proceedings directly connected with the adjudication of soundness or unsoundness of mind. We are not discussing or deciding any matters of the administration of the estate of the party adjudged insane. There is, however, another section of this chapter 39, the consideration of which lends some force and support to our conclus
While it is true that in the case at bar no order of confinement is before us and no evidence or suggestion that the appellant is so unfortunate as to render her presence unsafe to the community and herself, our statute makes no distinction between irresponsible persons, persons of unsound mind or idiots and raving-maniacs. It is provided in section 3702, of our Revised Statutes, that “for the purposes of this chapter, wherever the Avords ‘person of unsound mind,’ or ‘insane person’ occur therein, said Avords shall be construed to mean either an idiot, or a lunatic, or a person of unsound mind and incapable of managing his own affairs, as the case may be, upon proof as aforesaid.” So that if an appeal lies in the case of a helpless and harmless idiot, it also lies in the case of a raving maniac.
While this case must be determined on the construction of our OAvn laws, it is not uninstructive to notice how far statutes nearly identical and under a system of laws practically such as ours, have been construed by the courts of our sister states.
The general rule is stated in volume 1, Ency.- PL and Pr., p. 1206, par. 19 (1), to be that in the absence of statutory authorization it is believed that no appeal from an adjudication in lunacy proceedings will be al
The same question arose in Michigan, and was decided in Sparrow v. Ingham, Circuit Judge, 109 Mich. 272. The Supreme Court of Michigan there held that no provision being made for an appeal from an order of the probate court committing a person to an insane asylum, an appeal cannot be taken under a general statute authorizing appeals from orders of the probate court “in all cases not otherwise provided for.” In the Sparrow case- the appellant was, as in the case at bar, a woman. In Michigan, as in our State, the legislation concerning lunatics was in one chapter, making no provision for appeal, Avhile this general provision for appeal Avas found in another and distinct chapter, just as in our own State. The Michigan statute has a provision in it also common to our OAvn statute. Thus, our statute provides (section 3689, R. S. 1899, a section in this same chapter 39), that when any person has been, on inquiry, found insane, an application may be filed by any person in the probate court, verifying the application by affidavit, that the person has recovered and been restored to his right mind, whereupon the court is authorized to open up the case anew. Speaking' of a similar provision in its OAvn statute, the Supreme Court of the State of Michigan, in the Spar
In the case of Studabaker et al. v. Markley, 7 Ind. App. 268, the appellate court of the State of Indiana held that in a case of a judgment which has been rendered in favor of a party charged with lunacy, and the judge, with the aid of the jury, has reached a conclusion in favor of sanity, the proceeding is at an end on its merits and no appeal therefrom is contemplated by the statute nor can be allowed. It appears by this case as reported that the proceeding of inquirendo de lunático in Indiana is conducted on the equity side of .the court. The judgment of sanity or insanity is pronounced, however, as in our State, before a court and a jury. The issue joined was tried by a jury, im-panelled under the direction of the court, and a verdict was rendered in favor of the party proceeded against. Discussing the question, on the statute peculiar to Indiana, the court indulged iñ a line of argument practically similar to that followed by the Supreme Courts of Illinois and Michigan and reached the same conclusion reached by the courts of those States.
The Supreme Court of North Carolina, in the case
The Court of Appeals of Texas, in the case of Darnell v. State, 24 Tex. App. 5, discussing the effect of a judgment finding a person insane, held that it was clearly not within the intention of the statute that an appeal should lie from a judgment under proceedings instituted for the purpose of passing on the sanity of a party complained of.
In Wilson v. State, 66 Iowa 487, the Supreme Court of Iowa, passing on a provision of the statute' providing for a rehearing of a question of sanity, when the issue was made as to the recovery of one theretofore declared insane, held that there was no appeal from a finding on such rehearing. The statute, says
The importance of this question is the justification for the somewhat lengthy consideration we have given to it, involving as it does the right of personal liberty and of the pursuit of happiness, in which latter is embraced the right of a man to the enjoyment of the fruits of his own labors. The very life of the citizen and all that renders life enjoyable is generally involved in these cases. Hence we have given this most serious consideration. The conclusion we have reached is that the general language employed in section 1674 has no application to the statute concerning persons thought to be of unsound mind, lunatics, and as chapter 39 deals with that subject alone and is obviously intended to cover all phases of it and grants no right of appeal on the finding and judgment under sections 3650-3654, and as we can conceive of very great difficulty growing, out of the case if an appeal were allowable, we have reached the conclusion that the action of the circuit court in this case in dismissing the appeal from the judgment of the probate court was correct. While our statute provides for appeals from the probate court in cases not prohibited by law, it is a wide latitude of construction that embraces within the provisions of that section the complete system established under chapter 39 relating to insane persons. Against the argument that a man may be improperly adjudged insane, it is to be said that if the proceedings are not regular, they can be reached by the writ of certiorari • if he has been" committed and restored to his right mind, the statute affords a new hearing; if he is wrongly convicted and is held unlawfully, and it can be shown in spite of the judgment of conviction that he is a sane man, we know of no reason, although not deciding that in this case, why he could not be released under and
For the reason given herein and on an examination of the authorities which we have gone into, we have all reached the conclusion that the judgment of the circuit court dismissing the appeal should be, and it is accordingly, affirmed.