146 F. 461 | 9th Cir. | 1906
(after making the foregoing statement, delivered the opinion of the court).
Under the foregoing state of facts, did the commissioner have any jurisdiction to make an order appointing Badger guardian of said White? Did the court have any jurisdiction to hear and determine the case? The jurisdiction of the commissioner as ex officio probate judge to appoint guardians for insane and incompetent persons is derived from the statute, and in order to obtain such jurisdiction it must affirmatively appear that the essential provisions of the statute were complied with. The court below upon the trial of this action proceeded on the ground that the statutes had been complied with in all essential particulars, and that the judgment of the commissioner adjudging White to be insane and appointing Badger as his guardian is conclusive, and cannot be collaterally attacked.
From a careful examination of the various sections of the Code of Alaska, it plainly appears that the validity of the proceedings had in the present case before the commissioner must be determined by the provisions of sections 89S and 896. The commissioner proceeded upon the theory that White was a resident of Fairbanks Precinct, and the District Court, in its opinion overruling the demurrer, said: “Upon the face of the probate record, it is my judgment that White was a legal resident of Fairbanks Precinct when these proceedings were begun, and that the court had jurisdiction to enter the judgment,” and further held that the proceedings were regular, and upon their face show “that the probate court had jurisdiction.” The mere fact that the commissioner had jurisdiction in such cases to receive and act upon the petition does not by any means establish the proposition that he acted, after receiving the petition, in compliance with the provisions of the statute, and this is the principal question to be determined by this court.
A commissioner’s court is one of limited jurisdiction, and compliance with the requirements of the law must be fully shown. It is undoubtedly true, as claimed by the defendant in error in the court below, that when jurisdiction is established, all presumptions of law and fact are in favor of the judgment. No authorities need be cited on
Without stopping to criticise the peculiar statements set forth in the petition of Long, and conceding, for the purpose of this opinion, that, defective as it is in almost every essential particular, it was sufficient to authorize the commissioner to proceed according to law to give notice to White of the pendency of the proceedings, and of the time and place when a hearing would be had thereon, was any such notice given? The suggestion is made on behalf of the defendant in error that section 896 does not provide what steps shall be taken to serve the notice on the person supposed or believed by the petitioner to be insane. The statute must receive a sensible construction. The statute says that “the commissioner shall cause notice to be given to the supposed insane person of the time and place appointed for hearing the case.” If White, the alleged insane or incompetent person, resided in Fairbanks Precinct, does not this language mean that the notice should be personally served upon the individual to be affected thereby? The language of section 896 is not susceptible of any other construction. There was no notice given to White in compliance with the provisions of the statute under which the commissioner acted. The “public notice” of the time and place of the hearing in a newspaper, or by posting a similar notice in three public places in the town of Fairbanks, was not such a notice as the statute requires. White did not appear at the hearing. The proceedings then had were ex parte, without authority of law, and void. Chase v. Hathaway, 14 Mass. 222; Eddy v. Eddy, 15 Ill. 386; Smith v. Burlingame, 4 Mason, 121, Fed.Cas.No.13,017; North v. Joslin, 59 Mich. 624, 626, 26 N.W. 810; Evans v. Johnson, 39 W.Va. 299, 19 S.E. 623, 23 L.R.A. 737, 45 Am.St.Rep. 912; Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206; Stewart v. Taylor (Ky.) 63 S.W. 783; Martin v. Motsinger, 130 Ind. 555, 558, 30 N.E. 523; Woerner, Am.Law of Guardianship, pp. 392, 393, 445.
In Smith v. Burlingame, supra, which was a proceeding-under a statute which authorized the courts of probate “to appoint guardians of all persons who are delirious, * * * or who, for want of discretion in managing their estates,
In Evans v. Johnson, supra, the court elaborately discussed the question as to the necessity of giving notice to the alleged insane person, and other questions applicable to the present case, and upon all the points cited numerous authorities. In answering the suggestion made that the notice to an insane man will do him no good, the court said: “The reply is that his insanity is the very question to be tried, and he the only party interested in the issue. In many cases, if notice be given him, he will be prompt to attend, and in person be the unanswerable witness of his sanity.”
The court further said: “Even though the statute be silent regarding notice, * * * yet the common law steps in and requires it. * * * A statute will not be construed to authorize proceedings affecting a man’s person or property without notice. It does not dispense with notice. * * * If the case were one of mere error or irregularity, it might be said that the order was good against collateral attack, and must be reversed by a direct proceeding; but the question is one of jurisdiction — a want of authority to make the order for want of jurisdiction over the person to be affected. * * * A sentence of the court without hearing the party, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to any respect in any other tribunal. Jurisdiction is indispensable to the validity of all judicial proceedings. Jurisdiction of the person as well as the subject-matter are prerequisites, and must exist, before a court can render a valid judgment or decree; and if either of these is wanting, all the proceedings are void.
In Stewart v. Taylor, supra, the court said: “Although the statute is silent upon the subject of notice, we cannot believe that the Legislature ever intended that one should be declared a lunatic, and have his property and person put in charge of another, without either being present in court, with an opportunity to defend the proceeding, or without having due notice thereof, and thus have an opportunity to appear and defend. Even if the Legislature had so intended, a judgment rendered in the proceeding would not be valid unless the defendant in the writ had been notified by process of the court of its pendency, or was present at the trial, with an opportunity to defend. To adjudge him to be of unsound mind without notice or his personal appearance at the trial would be to deprive him of important and valuable rights without being heard.”
In Martin v. Motsinger, supra, the court said: “While the statute does not in terms provide for notice, the proceedings are of such a character that they cannot be ex parte and be valid. If the statute was to be construed as authorizing proceedings of an ex parte character, it would be, to that extent, in conflict with the Constitution of the United States, and void.”
Perhaps the most illustrative case bearing upon the injustice that may be done by a judicial proceeding without notice is that of Scott v. McNeal, 154 U.S. 34, 40, 48, 14 S.Ct. 1108, 38 L.Ed. 896. This was a suit in ejectment. The facts showed that in March, 1881, the plaintiff mysteriously disappeared, and nothing was heard of him, and he was believed to be dead until July, 1891, when he returned. In 1888, on the presumption that he was dead, letters of administration were granted, and his estate was administered upon and the land in question sold. When he returned he sued the purchaser for the land. The courts of the state of Washington held that the proceedings in adminis
See, also, Hamilton v. Brown, 161 U.S. 256, 267, 16 S.Ct. 585, 40 L.Ed. 691; New Orleans Water Works v. New Orleans, 164 U.S. 471, 480, 17 S.Ct. 161, 41 L.Ed. 518; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 234, 17 S.Ct. 581, 41 L.Ed. 978.
The judgment of the District Court is reversed, and the action dismissed, without prejudice.