27 N.W.2d 788 | Minn. | 1947
Lead Opinion
Mabel L. Drew, plaintiff's sister, on April 16, 1946, executed and filed with the clerk of the Hennepin county probate court a petition to have her brother, the plaintiff herein, adjudged an incompetent and asking that she be appointed general guardian of his person and estate. On the following day, April 17, she filed a certified copy of such petition in the office of the register of deeds for said county pursuant to M.S.A. §
"After the filing of the petition, a certified copy thereof may be filed for record in the office of the register of deeds of any county in which any real estate owned by the ward is situated and if a resident of this state, in the county of his residence. If a guardian be appointed on such petition, all contracts except for necessaries, and all transfers of real orpersonal property made by the ward after such filing and beforethe termination of the guardianship shall be void." (Italics supplied.)
An order of the probate court, dated April 16, 1946, providing for a hearing on the aforesaid petition on May 8 was served on plaintiff by leaving a true and correct copy thereof at his house of usual abode with a person of suitable age and discretion then residing therein. No one appeared either in support of or in opposition to the petition at the hearing on May 8, and as a result the matter was stricken from the court calendar. *79
Before any further steps were taken in the guardianship proceedings, plaintiff on May 14, 1946, purported to sell, and to deliver possession of, the above premises to defendants for $5,000, and in evidence thereof issued a written receipt acknowledging a down payment of $50. On May 16, 1946, and again on May 18, plaintiff issued receipts acknowledging further payments on the purchase price, in the respective sums of $325 and $33. Defendants took immediate possession of the premises.
Thereafter, namely, on June 10, 1946, plaintiff's aforesaid sister, alleging that she had through inadvertence failed to appear at the hearing on May 8, petitioned the court for an order reinstating the guardianship petition for hearing on the court's calendar. Thereupon the probate court, under date of June 26, 1946, issued an order requiring plaintiff to show cause before the court on July 11 why said petition for guardianship should not be reinstated for hearing forthwith. This order to show cause was served on plaintiff personally on June 28. Pursuant to the hearing on July 11, the court made an order appointing the sister as guardian. This order specifically recited that the sister had appeared in support of the guardianship petition and that no one had appeared in opposition thereto. Letters of guardianship were issued as of July 18, 1946.
Subsequent to the foregoing proceedings, plaintiff, through his guardian, brought this action for cancellation of the receipts and for recovery of possession of the premises, and in his complaint alleged the filing with the register of deeds of a verified copy of the guardianship petition, the appointment of a guardian pursuant to said petition, and further alleged that the execution of the aforesaid receipts evidencing a sale of the premises had been fraudulently obtained by defendants at a time when plaintiff was mentally incompetent and unable to understand the nature of his acts, and that the possession of the premises had also been obtained by fraud. By their joint answer, defendants denied generally the allegations of the complaint and in addition specifically alleged the purchase of the premises and their willingness to pay the entire balance of the sale price by making a deposit thereof with the court. Plaintiff, *80
upon the pleadings and records on file, together with certain affidavits establishing the facts hereinbefore recited, made a motion to have the answer stricken as sham and for entry of judgment. This motion was granted, and judgment was ordered as prayed, except as to certain damages which are not here material. In its memorandum, the trial court expressed its opinion that the purchase-and-sale transaction was necessarily void under §
1. An answer is sham when it is clearly and indisputably false and tenders no real issue. Upon a motion to strike an answer as sham, the duty of the court is to determine whether there is an issue to try, and not to try the issue. Zinsmaster Baking Co. v. Commander Milling Co.
2. Does the filing of a petition for an adjudication of incompetency and the appointment of a guardian, without theservice of notice upon the alleged incompetent, confer jurisdiction for the valid appointment of a guardian? Minn. Const. art.
"* * * A judgment in rem may be briefly defined as one founded on a proceeding instituted not primarily against the person but against or upon some thing or subject matter the status or condition of which is to be determined. Such judgment is one affecting the status of the res. A proceeding inpersonam is a proceeding against the person. It involves his personal rights and may involve his right to specific property or the exercise of the ownership of such property, but it isbased on jurisdiction of his person." (Italics supplied.) McCormick v. Blaine,
3. If we keep in mind the fundamental distinction between a jurisdiction in rem and a jurisdiction in personam, it becomes obvious that principles and decisions governing the acquirement of the former are not necessarily controlling as to the latter. Although the filing of a proper petition for the administration of a decedent's estate, without the giving of notice, confers jurisdiction over the estate or the res
(In re Estate of Barlow,
"* * * It seems incongruous to say that courts may secure jurisdiction of a person, under a petition to determine whether he is incompetent, by assuming a status of incompetency, which can be determined only by hearing on the petition and overcoming the presumption, everywhere recognized, that such person is sane. * * * To presume such person insane in order to establish jurisdiction would be proving the issue by assuming its determination." McCormick v. Blaine,
In State ex rel. Degen v. Freeman,
"* * * The filing of a proper petition gives it jurisdiction of the subject matter of the particular case, and by service ofa warrant or process, or by his voluntary appearance, itacquires jurisdiction of the person." (Italics supplied.)
Obviously, in the absence of a voluntary submission to the jurisdiction of the court (as in Scott v. Whitely,
4. We now come to a determination of the manner of giving the notice in order to confer jurisdiction over the person of an alleged incompetent. In State ex rel. Chesley v. Wilcox,
"The manner in which jurisdiction conferred by the constitution on any court or officer shall be exercised when not prescribed by the constitution itself, or the power to regulate it vested elsewhere, may be regulated by the legislature."5
By appropriate enactment, §
"* * * At least 14 days prior to such time, personal serviceshall be made upon the ward." (Italics supplied.)
5. In applying the foregoing statute to the instant case, it is clear that service of the notice upon plaintiff in advance of the hearing on May 8 by leaving a copy thereof at his house of usual abode was of no avail. The statute (§
6. On May 8, no appearance having been made either in support of or against the petition for the appointment of a guardian, the matter was stricken from the calendar. Merely striking a matter from the court calendar does not of itself constitute a dismissal of the action or proceeding. The petition on file was not thereby dismissed, but was still effective as a basis for obtaining a hearing for the appointment of a guardian. The court's order providing for a hearing of the matter on July 11 was served on plaintiff in person on June 28. Clearly, the appointment of a guardian on July 11, followed by the issuance of letters of guardianship on July 18, was made on the petition as required by the lis pendens statute (§
7-8. The order of the court set the hearing for July 11, but the notice thereof was not served on plaintiff personally until June 28. M.S.A. §
"Where the performance or doing of any act, duty, * * * or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, such time, * * * shall be computed so as to exclude the first and include the last day of any such prescribed or fixed period or duration of time." *85
This rule for the computation of time is of long standing. State ex rel. Currie v. Weld,
9. It is the settled law of this state that a judgment of a probate court, as a court of superior jurisdiction, cannot be attacked collaterally for want of jurisdiction not affirmatively appearing on the face of the record. The mere absence from the record of facts essential to jurisdiction does not render an order, judgment, or decree subject to collateral attack. The presumption of jurisdiction is conclusive unless the want of jurisdiction affirmatively appears from the record itself. Davis v. Hudson,
Since the writing of the foregoing, our attention has been directed by the dissent to the decision of Kurtz v. St. Paul
Duluth R. Co.
The dissent ignores the distinction between the nature of the jurisdiction to be acquired in original proceedings for the creation of a guardianship status and the nature of the jurisdiction exercised after such status has once been created. Failure to heed this vital distinction leads to an erroneous interpretation of the majority opinion, to the effect that the jurisdiction granted in guardianship matters must be exercised exclusively through proceedings in personam. As hereinbefore explicitly stated, such is not the case. Initial proceedings, however, for the creation of a status of incompetency — that is, to adjudicate a person to be incompetent in the first instance — does involve an exercise of jurisdiction in personam, and the manner of the exercise of this jurisdiction, when not prescribed by the constitution itself, is, as hereinbefore indicated, for the legislature to determine by statutory regulation. State ex rel. Chesley v. Wilcox,
The trial court erred in striking out the answer as sham and in directing the entry of judgment for plaintiff.
Reversed.
In the absence of an existing status of adjudicated incompetency, this court has never held that jurisdiction for the appointment of a guardian of either the estate or the person of an alleged incompetent may be obtained without the service of notice or process in compliance with the statutory provisions governing the exercise of probate jurisdiction.
Smith v. Smith,
In State ex rel. Martin v. Ueland,
Dissenting Opinion
I am of the opinion that the probate court had jurisdiction to make its order of July 18, 1946, appointing plaintiff guardian of the estate of Herbert M. Jasperson; that hence said order was not subject to collateral attack; and, in consequence, that the filing in the register of deeds' office of a certified copy of the petition in the guardianship proceedings under the provisions of §
1. We have held that the probate court's jurisdiction includes not only "the appointment of guardians and the control over their official actions, but the care and protection of theestates of the wards, formerly vested in the court of chancery." State ex rel. Martin v. Ueland,
2. Minn. Const. art.
"Administration proceedings are in rem and jurisdiction is not acquired by notice to interested parties. Notice may bemade jurisdictional by statute, but it is not a requirement ofdue process of law. *90 If a statute requires a notice, but does not make itjurisdictional [§
The rule is more explicitly stated in Hanson v. Nygaard,supra, as follows (
"* * * jurisdiction of the probate court over the estate of a deceased person attaches * * * by the presentation to the court of a proper petition * * * the failure to give proper notice to interested parties * * * is an irregularity which renders the subsequent proceedings voidable and subject to be set aside on motion or appeal. * * * the validity of the subsequent proceedings cannot be questioned in a collateral proceeding."
3. Notwithstanding an early case contra (Davis v. Hudson,
"Jurisdiction depends upon the filing of the petition and notupon notice. Hanson v. Nygaard,
While it may be that jurisdiction of the person, as distinguished from the property, of the ward may be delayed until personal service of the notice upon the ward, jurisdiction over the ward's estate is acquired immediately upon the filing of the petition. This distinction *91
is set forth in State ex rel. Degen v. Freeman,
"The probate court by the nature of its organization has jurisdiction over insane persons, and jurisdiction to render such a judgment as was entered. * * * The filing of a properpetition gives it jurisdiction of the subject matter of theparticular case, and by service of a warrant or process, or by his voluntary appearance, it acquires jurisdiction of the person." (Italics supplied.)
In In re Estate of Gilroy, supra, we stated (
"* * * He [appellant] concedes that the probate court is the only court having jurisdiction of the estates of deceased persons and persons under guardianship. The state constitution so provides. Art. 6, § 7. The legislature is without power to curtail or limit the general jurisdiction thus conferred by the constitution, * * *. Its general jurisdiction attaches at onceupon the presentation to it of a proper petition by some personentitled to take such action." (Italics supplied.)
In re Guardianship of Carpenter, supra, expressed the rule as follows (
"* * * The probate court is by the constitution invested with jurisdiction of persons under guardianship (art. 6, § 7), but the statute regulates the manner in which a probate court is authorized to take jurisdiction of any particular estate or person. 2 Mason Minn. St. 1927, § 8708, provides that a particular probate court is invested with authority to proceed when a petition is filed with it respecting a matter within itsjurisdiction. An order made by the probate court without such petition in a matter within its jurisdiction is void and of no effect." (Italics supplied.)
4. Perhaps the reason for the departure from the rule of Davis v. Hudson,
"* * * Notice of the hearing for such appointment is not aconstitutional prerequisite to the jurisdiction to name aguardian. Appointing a guardian deprives no one of his property, and does not change or affect the title of it. Letters of guardianship are merely a commission which places the property of the ward in the care of an officer of the court as custodian, and in its effect is not essentially different from the appointment of a receiver, or temporary administrator, a jurisdiction which can be and frequently is exercised before service of any process. The matter of notice of an applicationfor the appointment of a guardian is, therefore, purely amatter of statutory requirement. * * * My own opinion is thatwhen it appears that the person or property was the subject ofguardianship, and that the letters were issued by the properprobate court, as were the facts here, the letters ofguardianship are not subject to collateral attack, but, likeletters of administration, are conclusive evidence of the dueappointment of the person therein named, until reversed onappeal, or revoked by the court which granted them. This is therule in most jurisdictions; and the practical difficulties andembarrassments resulting from a different rule are veryapparent." (Italics supplied.)
In no subsequent case was the doctrine of the Davis case adhered to.
5. It is stated in the majority opinion that the jurisdiction granted in guardianship matters must be exercised through proceedings in personam exclusively. This would seem to ignore the distinction between the jurisdiction over the person in guardianship matters and jurisdiction over the property of an alleged incompetent, as brought out clearly in State ex rel. Degen v. Freeman,
In an early case, State ex rel. Martin v. Ueland,
"* * * in most of the American states, courts called probate, surrogate, or orphans' courts were established at an early day for the *93 settlement of the estates of decedents, and the determination of all questions arising in the course of administration, to the practical exclusion of equity jurisdiction over such matters. * * * Thus an important branch of equity jurisdiction, * * * was transferred to these courts. * * *
* * * * *
"* * * Its [probate court's] jurisdiction over the estates of persons under guardianship includes not only the appointment of guardians and the control over their official actions, but the care and protection of the estates of the wards, formerly vested in the court of chancery."
While the rule has often been expressed that "equity acts inpersonam" (2 Dunnell, Supp. § 3136), it is well settled that the legislature may confer upon equity courts a jurisdiction over property within the state as distinct from and independent of any personal jurisdiction acquired over the owner thereof. This rule is expressed in 19 Am. Jur., Equity, § 24, as follows:
"* * * The state has power to enact statutes under which the interests of persons in property within the state shall be affected so far as that property alone is concerned, even though such persons may not have been personally served with process within the state. This power has been very generally exercised."
Minnesota is in accord with these principles. In Smith v. Smith,
"* * * If the enforcement of the decree is dependent solely upon the inherent powers of a court of chancery, the decree is, of necessity, a decree in personam, because, generally, equity jurisdiction is exercised in personam and depends upon the control of the court over the person of the parties. If, however, there is statutory power given to the court to effectuate the decree by passing title to the property, then the proceeding becomes in the nature of a proceeding in rem, and in such case service by publication upon nonresidents will confer jurisdiction to deal with the property." *94
As stated in 2 Dunnell, Supp. § 3136:
"The procedural maxim that 'equity acts in personam' must not be confused with the substantive right itself. This manner of procedure is no doubt due to an historical accident. * * * It seems much simpler in modern times, when we regard the principles of equity as constituting as much a part of our law as those of common law, to regard equitable rights with respect to property as rights in rem in the same sense that common-law rights are. * * * That equity acts in personam was one of its earliest maxims. Yet this principle was strictly applied only during the early classical period, and then, probably, to avoid conflict with law judges. Apart from methods of enforcement, most equitable remedies deal essentially with property rights. At present, moreover, equity is exercising an increasing jurisdiction in rem. This tendency, supported by many authors, may be attributed partly to reasons of convenience and necessity, partly to the merger of law and equity, and partlyto legislation." (Italics supplied.)
From the foregoing authorities, it is apparent that while the probate court may be governed in substance by equitable rules and principles in guardianship matters, there is nothing therein which constitutes a bar to legislative authority granting to probate courts jurisdiction over the property of incompetents as proceedings in rem without the service of process required in in personam proceedings. Likewise, it is clearly established by our decisions that there is no constitutional restriction against such legislative power. Hanson v. Nygaard, supra.
6. Accordingly, when the legislature enacted §
Likewise, when it enacted §
"After the filing of the petition, a certified copy thereof may be filed for record in the office of the register of deeds of any county in which any real estate owned by the ward is situated and if a resident of this state, in the county of his residence. If a guardian be appointed on such petition, all contracts except for necessaries, and all transfers of real or personal property made by the ward after such filing and before the termination of the guardianship shall be void." (Italics supplied.)
This section superseded Mason St. 1927, § 8927, which had provided for such filing with the register of deeds after service of the statutory notice. The purpose of this change was indicated by Judge Albin S. Pearson, one of the sponsors of the revised code, in 20 Minn. L.Rev. 336, as follows:
"Section 132 changes G. S. 8927 so that a certified copy of the petition only need be filed in the office of the register of deeds, rather than the petition, notice, and proof of service; and such, filing may be made before service of theorder. Usually when there is any occasion for givingconstructive notice, time is an important element; if desired, the result should be as readily obtained as in civil actions." (Italics supplied.)
7. Obviously, it was the intent of the legislature to protect the property of an incompetent from and after the filing of the petition in the office of register of deeds. It recognized that the probate court acquired jurisdiction over the same when the proceedings were initiated in such court by the filing of the petition therein. It expressly provided for continuing protection thereafter, regardless of when personal service was made upon the incompetent. Even though such subsequent service was long delayed, or ineffective, or procured only after several abortive attempts or returns, the original protective jurisdiction over the property continued and remained in full force and effect, under such statutory provisions, until the proceedings were dismissed or otherwise terminated. *96
By upholding here a collateral attack on the jurisdiction thus acquired, in substance the majority opinion nullifies the protective effect of §§