212 Mich. 687 | Mich. | 1920
This is a habeas corpus proceeding to test the detention in the Michigan Farm Colony for Epileptics of Lura Greenman, 15 years of age, plaintiff's child. The writ is directed to Robert L. Dixon, medical superintendent of the institution, which was established under chapter 56, 1 Comp. Laws 1915, for the treatment of epileptic persons as distinguished from persons idiotic or insane. The writ was accom
“Upon filing of such petition with the court, the court shall fix a day of hearing and shall give notice thereof to the person alleged to be epileptic and to his next of kin if they are within the county; to his guardian, if he has one; to the person in whose custody he is at the time of making the petition and to the prosecuting attorney of the county. Such notice shall be served not less than three full days before the time of hearing upon the persons to whom notice is directed.” * * *
The petition was filed on March 29, 1920. An order was made on that day fixing the day of hearing for March 31st, and directing that personal service of a copy of the order be made on the child at least 24 hours previous to the time of hearing. The service of the notice on the child was insufficient as to time. That there was a compliance with the other requirements of the. statute as to notice of the hearing is not shown, nor does it appear that any of those to whom the statute requires notice shall be given attended at the hearing.
The probate court derives its jurisdiction from the statute. To obtain jurisdiction in this case, therefore, the provisions of the statute should have been strictly pursued. See North v. Joslin, 59 Mich. 624; Grady v. Hughes, 64 Mich. 540; In re Phillips, 158 Mich. 155; In re Miller’s Estate, 173 Mich. 467; In re
The right of the plaintiff to sue out the writ is not ■questioned. See In re Mould, 162 Mich. 7. But, though the order and commitment are void, counsel contend that this court, under its common-law jurisdiction over infants, idiots and insane persons, may act with reference to the question from its own conscience for the best interests of the child, following the rule that the placing of a child under proper influence and care is of the first consideration, and this regardless of the irregularity of the committal, citing In re Gould, 174 Mich. 663; In re Clancy, 108 Mich. 427; In re Solosth, 157 Mich. 224; Martin v. Benzie Circuit Judge, 200 Mich. 549; In re LaCroix, 160 Mich. 531; State v. Kilvington, 100 Tenn. 227 (45 S. W. 433, 41 L. R. A. 284); New York Foundling Hospital v. Gatti, 203 U. S. 429 (27 Sup. Ct. 53); In re Hickey, 85 Kan. 556 (118 Pac. 56, 41 L. R. A. [N. S.] 564).
The rule stated and authorities cited by counsel are not controlling in this case. Lura Greenman may be committed to the institution and there detained only in the event that she shall be found to be an epileptic, and that it shall be determined that it is necessary and for her best interest that she be committed thereto. Such finding and determination in this case are originally for the probate court of Kent county. See sections 1601 and 1613, 1 Comp. Laws 1915; In re Allen, supra; In re Dagley, 44 L. R. A. (N. S.) 389 (35 Okla. 180, 128 Pac. 699). Lura Greenman will, therefore, be discharged from such confinement in the institution on said order. All proceedings in the probate court in the cause, subsequent to the filing of the petition for the admission of the child to said institution, are set aside.
At the time of the filing of said petition and the
