| Tenn. | Sep 25, 1888
Mary Davis, the plaintiff in error, was declared a person of unsound mind by the County Court of McMinn County. She has filed 'a transcript of the record, and obtained a writ of error upon taking th@>oath prescribed for poor persons.
The first error assigned is that she was not served with a copy of the petition of J. E. PTor-vell, the defendant in error, praying for a writ of inquisition against her. This would he error hut for the fact that it appears that she was duly served with notice of the time, place, and object of the inquisition, and it does not appear that any objection was made because .copy of petition had not been served upon her. This irregularity must be treated as waived.
The next assignment of error is that the record' does not show that the defendant was examined by' the jury, or that the testimony of the witnesses heard by the jury was reduced to writing by the Clerk and returned into Court by the jury with their verdict.
The article of the Code concerning proceedings in the County Court upon a writ of inquisition does not, in terms, require either the examination of the defendant or that the testimony shall be reduced to writing and returned with the' verdict.
Where the estate of the defendant exceeds five hundred dollars in value, the jurisdiction of the County Court is concurrent with that of the Chancery Court. The case now un|ler consideration was one of concurrent jurisdiction, the fact that the estate of the defendant exceeded five hundred dollars appearing upon the face of the petition as well as in the verdict of the jury. • When the jurisdiction is concurrent, the practice prescribed for proceedings of a similar nature in the Chancery Courts must be pursued as near as may be consistent with the difference in the organization of the two courts. Section 4196 of the Code is as follows: “ The mode of proceeding in the County Court, where the jurisdiction is concurrent either with the Circuit or Chancery Court, shall be, as near as may be, according ' to the rules and regulations laid down for the conduct of similar business in these courts.” The sections regulating the jurisdiction and practice of the County Court in inquisitions of lunacy nowhere expressly require that any petition shall be filed, or copy served upon the defendant, or any notice to the defendant of the time and place of inquisition. Yet this Court, in two well considered cases, held, that in cases of concurrent jurisdiction the defendant is entitled to both copy of
In cases of inquisition of lunacy, whether before the County or Chancery Court, the testimony is not delivered in court, but is heard only by the jury, and this. .furnishes a most potent reason why the evidence should be reduced to writing and returned into court with the verdict. By being so returned into court the testimony becomes a part of the record. In no other way could a bill of exceptions be obtained upon which the case might be reviewed upon the facts by an appellate court. Every consideration of justice to the most helpless and friendless class of our people demands a compliance with these most reasonable precautions against error and oppression. Neither is there anything in the organization and machinery of the County Court which will prevent a compliance with this regulation. We, therefore, hold, that where the jurisdiction of the County Court is concurrent with the Chancery Court, the Clerk of the County Court, or his deputy, must preside over the deliberations of the jury, and that he must reduce to writing the examination of the defendant and the
The motion of defendant in error to dismiss the writ of error because prosecuted by Mary Davis in proper person, and because prosecuted in forma pau-peris, is denied.
If it be assumed that she is non compus mentis, yet that affords no sufficient reason why she may not prosecute such a suit as this in her own name: Rankin v. Warner, 2 Lea, 302.
That all of her estate is in the hands of the guardian appointed under the proceeding under review, is a sufficient justification for the prosecution of this writ of error upon the oath prescribed for poor persons. The case' will be remanded to the Court below, to be proceeded with under a new writ of inquisition if defendant in error shall be. so advised.
The costs of the Court below, as well as of this Court,, will be paid by defendant in error.