Fore v. Fore, 44 Ala. 478

Fore v. Fore

44 Ala. 478 | Ala. | 1870

PETERS, J.,

(after stating facts as above.) — No doubt a certiorari may be improvidently granted. When this is. the case, it should be dismissed.— Winn v. Freele, 19 Ala. 171; Enis v. Ross, 19 Ala. 239.

The jurisdiction of causes for the inquiry into lunacies and idiocies, and into such mental incapacity as renders a party incompetent to manage his own affairs, and requires the assistance of a guardian, has been transferred by our law from the chancellor to the judge of probate. *483And this latter officer exercises the same jurisdiction that the chancellor did before this change, but in the manner prescribed by the statute ; and the proceedings before the judge of probate must have the same effect, to the extent they go, that the like proceedings would have had before the chancellor. Judge Story lays down the chancery practice in such cases, which is no doubt correct, as follows : He says, “in regard to the manner of ascertaining whether a person is an idiot or a lunatic, or not, a few words will suffice. Upon a proper petition addressed to the chancellor, not as such, but as the person acting under the special warrant of the crown, a commission issues out of chancery, on which the inquiry is to be made, as to the asserted idiocy or lunacy of the party. The inquisition is always had, and the question tried by a jury, whose unimpeached verdict becomes conclusive upon the facts. The commission is not confined to idiots or lunatics, strictly so-called; but in modern times it is extended to all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs, and therefore are properly deemed of unsound mind, or non compotes mentis. Q Story on Eq. § 1365; Eev. Code, § 3i89. In this case the requisitions imposed by the statute 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. If the defendant failed to avail himself of such matters of defence as he might have had to urge in his behalf, he must suffer the effect of his failure to do so. His ignorance of the time and mode of making his defense can not avail in the present condition of his cause. Ignorance of law, in such a case, does not excuse. Ignorantia juris non exeusat, — Broom’s Max. p. 122, marg. Aside from this objection, that the defendant, Fore, was not sufficiently and properly notified of the proceeding in lunacy before the judge of probate, which is so ably urged by the learned counsel for the appellant, the record of the proceedings before the judge of probate is devoid of irregularity. But this objection is not well *484taken to this proceeding ; because it clearly appears that the defendant, Fore, had all the notice that the statute contemplates. This must be regarded as sufficient. — Rev. Code, § 3190.

A certiorari only brings up the record of the proceedings in the inferior court to the superior court, and the cause must be heard in the superior court on the record alone. There can not be a trial de novo, unless the statute has so directed. If there is no error in the record, the judgment of the inferior court must stand ; and such errors as do not grow out of the record, must be reserved by bill of exception, whether they arise out of law or fact.— 2 Bac. Ab. Bouv. p. 162, et seq.; John v. The State, 1 Ala. 95. The judgment on certiorari is either that the proceedings below be quashed or that they be affirmed. — 8 Yerg. 102, 118; 5 Mass. 423.

I think that an appeal may well lie in such a case as this. It is a proceeding before the judge of probate, and is dis- ' posed of by his order ; it is piso a final disposition of the cause before him. The interest often involved is certainly such as would justify an appeal. — Rev. Code, § 2247,3485 ; Const. Ala. 1867, art. vi, §§ 1, 2 ; 2 Chitty’s Gen. Pr. 353, 354.'

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. This being so prescribed, it takes the place of all others, unless it is merely a cumulative statute. This is not so. The statute changes the old law, and it deals with the whole subject; the form of the remedy, as' well as the jurisdiction. In such a case the statute contains the whole law, and repeals the old requirements not copied into it'. Then the writ of arrest is all the notice the defendant was entitled to, and this he received. — Eslava et al. v. Lepretre, 21 Ala. 504; Smith’s Com. on Stat. p. 904, § 786.

There was no error, as shown by the record, in the proceedings in this suit in the court below. Its judgment is. therefore affirmed. The appellant’s representative will pay1 the costs of this appeal in this court and the court below.