Lead Opinion
delivered the opinion of the court.
The petitioner was remanded and brings error.
Ishаm was arrested in Denver on process from the county court of Adams county, taken to the latter county and tried thеre for lunacy. He was found insane and committed to the Colorado Psychopathic Hospital.
His point here is that the county court of Adams county had no jurisdiction, because he was not á resident nor found in that county. It appeаrs, however, that the question of his place of residence was raised and determined by the county court which found thаt he was a resident of Adams county. This finding is conclusive on that point. 15 C. J. 734.
Sibley v. Waffle,
The pertinent statute is C. L. § 551. It provides that “wherever any reputable person shall file with any county court, * * * a duly verified complaint, alleging that any person in said county” is insane, that court shall order him into custody, try him and if found insane commit him.
The first question for us, therefore, is whether anyone resident in a county may be said to be “in the county,” though not рhysically there when taken into custody. We do not think that can be decided in the
*382
negative. We think he is in the county who is eithеr a resident or actually found and taken into custody therein. Such a construction seems necessary to carry оut the obvious purpose of this statute which is to protect the public from the insane, and the insane man from himself and from designing persons, and to cure him if possible. The .case of
State ex rel. Roberts v. Hense,
It is urged that it was shown in the district court that the petitioner’s domicile was Denver, but the findings of a court upon a question of fact, cannot be questioned in a habeas corpus proceeding in another court, even though the first court’s jurisdiction depends on that fact, because thereby the court before which the habeas corpus is pending would be merely reviewing the judgment of the first court. The cases are so numerous upon this point that it is not necеssary to cite them. One is
People v. District Court,
Wherever jurisdiction of a court depends upon a question of fact, that court may try that quеstion.
Sibley v. Waffle, supra.
See also
Miller v. Weston,
It is claimed that the process of the county court could not run to Denver, but in civil and criminal matters it is constantly so exercised, and we see no reason why not also in a lunacy mattеr.
The judgment of the district court is affirmed.
*383 Mr. Justice Bueke sitting as chief justice.
Mr. Chief Justice Allen and Mr. Justice Adams not participating.
Addendum
On Rehearing.
The motion for rehearing says that we misapprehended the сase by supposing that Isham had been tried for lunacy in the county court of Adams county, and his residence in Adams county is thereby determined. It now appears that he was not tried there, hut the situation of the case is not altered becаuse it appears that upon the preliminary writ he was ordered held at the psychopathic department оf the Colorado General Hospital in Denver; that upon a motion to quash for want of jurisdiction he presented his оwn affidavit that he for a long time past had been a resident of Denver. The affidavit of his wife contradicted this and prеsented evidential matters in some detail, tending strongly to refute it. In denying the motion to quash, the court must have found the fact thаt he was a resident of Adams county. The effect, then, of the writ of habeas corpus would be to review that finding of the сounty court. We cannot see that such a course would be right. We still think that the county court has jurisdiction if the residence of the alleged lunatic is in Adams county. For preliminary purposes that is now determined. It is impossible to determine it othеrwise except by retrial of the fact, which turns the habeas corpus proceeding into an appeal with triаl de novo.
People ex rel. v. District
Court,
The motion for rehearing now raises a new question, not raised before, viz., that the county court had no authority, without bringing the accused into court, to order him held preliminarily. Under our rules they cannot take that position on mоtion for rehearing, but even if this *384 were not so, proceedings have been begun in a court having jurisdiction of the subject matter, they have arrested his person and have served him with a statutory notice that the inquiry as to his sanity will take place, they thus have jurisdiction of the person, and, under the statute (C. L. § 551), it is the duty of the court, pending the hearing, to order him held “in a hospital or some other convenient or suitable place.” It must be noted that there is no allegation that there is unrеasonable delay in hearing the case on its merits, and that the said statute does not require him to be brought before thе court except in case he is apprehended without order of the court, in which case he shall be takеn immediately before the judge. The present petitioner was apprehended under an order of court in the proper manner, but sometimes it is necessary to apprehend an insane person without any order and he is prоtected in such case by the above provisions.
The new point is also made that the General Psychopathiс Hospital is not a lawful place to confine a man, because the statutes with reference to that hosрital do not provide for commitment thereto in the manner in which this man was committed. Since this point is new it cannot be mаde in a motion for rehearing, but if it could, we think the proceedings within the terms of ch. 158, S. L. 1923. This point, however, we do not decide. The motion for rehearing is denied. Opinion modified and judgment affirmed.
Mr. Justice Burke sitting as chief justice.
Mr. Chiee Justice Allen and Mr. Justice Adams not participating.