178 N.E. 195 | Ill. | 1931
This cause is here on certificate of importance and appeal allowed by the Appellate Court for the First District. It arises on a petition filed in the probate court of Cook county to declare Stanley McCormick to be an incompetent person and to appoint a conservator for his person and property.
On October 4, 1928, appellants Cyrus H. McCormick and Harold F. McCormick, brothers of Stanley McCormick, filed a petition in the probate court of Cook county *463 alleging that Stanley McCormick was an insane person and incompetent to manage and control his estate and that he possessed real property in Cook county. The petition prayed that a hearing be had as to the competency of Stanley McCormick, and if found to be incompetent that conservators be appointed for his property in this State. Summons was issued and returned not found. Constructive service was had by publication and mailing of notice to Stanley McCormick at Santa Barbara, California. Two days later the appellee, Katharine Dexter McCormick, wife of Stanley McCormick, filed in the same court a similar petition, praying that she be appointed conservator of both the person and estate of Stanley McCormick. To this latter petition the brothers of Stanley McCormick filed objections, in which they were joined by their sister, Anita McCormick Blaine, also appellant here. These objections were directed against the appointment of a conservator for the person of Stanley McCormick. The two petitions were heard together. A jury was impaneled, which found Stanley McCormick to be incompetent and found that he had real estate and personal property in Cook county. The probate court on that verdict granted the prayer of both petitions in so far as they sought the appointment of conservators for the property of Stanley McCormick in Illinois, and appointed the Continental Bank and Trust Company of Chicago, Illinois Merchants Trust Company of Chicago, Katharine Dexter McCormick, petitioner in the second petition, and Harold F. McCormick, petitioner in the one first filed, as such conservators. The appointment of a conservator for the person of Stanley McCormick was denied on the ground of want of jurisdiction over his person. From this order Katharine Dexter McCormick appealed to the circuit court. That court sustained a motion to dismiss the petition of Katharine Dexter McCormick as to this latter order on the ground of want of jurisdiction over the person of Stanley McCormick. On appeal to the Appellate Court the *464 judgment of the circuit court was reversed and the cause remanded for further proceedings, and, as we have noted, the cause is here on certificate of importance.
The question involved in the case is whether the probate court of Cook county had jurisdiction to appoint a conservator of the person of Stanley McCormick, who, it is conceded, has lived in Santa Barbara, California, and has not left that State since 1908. No question of fact is involved. Stanley McCormick, now about fifty-five years of age, was born in Chicago, where he resided until his marriage to the appellee, Katharine Dexter, in 1904. In 1906, while visiting in Massachusetts with his wife, he became mentally deranged. He was kept in a hospital in Massachusetts until 1908, when he was removed to California. It appears that in 1909, conservators, or guardians of his person as they are there styled, were appointed by a California court. He has since lived on property belonging to him in Santa Barbara, California.
The question of the jurisdiction of the courts of this State to appoint a conservator of the person of an alleged incompetent citizen of the State residing outside its borders is one on which this court has not directly passed. The probate and circuit courts held that a proceeding to appoint a conservator for the person is one in personam, and that jurisdiction may not be taken by the courts of this State, by constructive service, to enter a personal judgment against one not within the State though he be domiciled in this State. The Appellate Court held that the proceedings were in rem, and that whether such be so or not, a State has jurisdiction, through constructive service, to enter a judgment of the character here involved against its citizens domiciled in this State but having a residence outside the State. The contentions of the appellants here are, that a proceeding arising on a petition to declare one an incompetent and appoint a conservator for his person is, so far as jurisdiction is concerned, a proceeding inpersonam; that the statutes *465 of this State have not authorized personal judgments based on constructive service by publication and mailing of notice, and that if such construction were to be placed upon the statutes they would be invalid as contravening the due process clauses of the State and Federal constitutions. Appellants also argue that the California court having taken jurisdiction of the person of Stanley McCormick by appointing guardians for him there, the principles of full faith and credit require that their judgment be recognized by the courts of this State. Appellee argues that the action is one in rem, and that, whether this is so or not, the Illinois courts have jurisdiction of the person of Stanley McCormick for the reason that, though absent from the State, he is a domiciliary of Illinois, and jurisdiction to enter personal judgment against an absent domiciliary exists in the State and is authorized by the statutes of this State.
The first question here presented is whether this is a proceeding in personam or in rem. A judgment in rein 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 theres. A proceeding in personam 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 is based on jurisdiction of his person. (Woodruff v. Taylor,
In Supreme Council of R.A. v. Nicholson,
In Matter of Daniel Vanauken,
In Holman v. Holman,
In Alexander's Chancery Practice, 225, the author says of the alleged lunatic that he "has a right to be present before the jury and may take part in the examinations before them."
In Eddy v. People,
While it is true, as pointed out by counsel for appellee, the opinions in the Eddy and Hathaway cases disclose that no notice was given, and, as herein noted, no notice was afforded in the other cases cited, yet it seems apparent that the courts in these cases considered an action on a petition to have one declared insane as one against him and affecting him personally. The reasoning supporting these decisions is to the effect that the issue of incompetency was, because of the effect of its determination on the alleged incompetent, a personal issue concerning him.
Counsel for appellee argue, however, that a proceeding for the appointment of a conservator of the person for an incompetent is a proceeding concerning the status of such person; that proceedings affecting status are proceedingsin rem, and that since in actions in rem personal service is not necessary upon a party domiciled in the State in which the proceeding is brought, but absent therefrom, it was not necessary in this case. Many cases have been cited by counsel for appellee which characterize the appointment of a *470
guardian or conservator as analogous to or in the nature of a proceeding in rem in that they are conclusive as to all the world. Of such is Leonard v. Leonard, 14 Pick. (Mass.) 280, where the action was on a note which defendant owed to plaintiff and to whom he paid the amount after plaintiff had been declared incompetent and a guardian appointed for him. It was held that the appointment of a guardian was in the nature of a proceeding in rem in the sense that it was conclusive as against all the world and therefore payment to the incompetent was not a defense against judgment on the note. The question here uppermost — that is, whether, as affects jurisdiction of the person of the alleged incompetent, the proceeding to have him so declared was a proceeding in personam or in rem — was not there considered, but, for the very clear reason that once having been declared to be an incompetent it is necessary to protect such incompetent, it was held that the judgment of incompetency and appointment of a guardian for him is binding on all the world. In Leggate v. Clark,
The appointment of a conservator for an insane person is referred to in these cases as analogous to a proceeding in rem in the sense that it is binding upon all the world. In none of the cases cited by appellee is the direct question of jurisdiction of the court to hear the insanity proceeding *471 considered. In so far as they disclose the character of service had on the one found incompetent that service was personal. The status referred to in this class of proceedings as in rem is generally that which has to do with the relation of one person to another, as in divorce, probate of wills, adoption of minors, and the like. It must be borne in mind that so far as questions of jurisdiction are concerned a difference exists in proceedings dealing with a status once established and proceedings to establish such status.
Counsel for appellee cite VanMatre v. Sankey,
An important distinction must be borne in mind between proceedings to adopt children and those to determine incompetency. In the former the minority of the child, and hence its incompetency, is conceded and forms the basis of the jurisdiction of the court of its domicile, under the doctrine of parens patri, to deal with such conceded status, while in a proceeding to have one declared incompetent the jurisdiction of the court arises on the petition seeking a determination of that matter. The condition or status of the alleged incompetent is not conceded but is the main issue to be tried in the case. It is tried with presumption, obtaining universally, that the one proceeded against is sane. In this it is not unlike a criminal case. A judgment of outlawry entered on a verdict of a jury finding a defendant guilty of a crime has been treated as a judgment in rem, (In re Gottsfeld, 91 Atl. (Pa.) 494), but no one will contend that a proceeding to determine the guilt of one charged *473 with crime is not an action in personam. While a judgment appointing a conservator, entered after a finding of a jury that a person is incompetent, is, as the cases hold, in the nature of a proceeding in rem, in that it is binding on all the world, it by no means follows that a petition to inquire into the mental condition of such person which seeks the custody of such person is in rem in such sense as to preclude the necessity of bringing such person properly before the court that he may defend against the judgment most vitally affecting him personally. In other words, the petition which gives the court jurisdiction to hear the issue is one which brings before the court the personal rights of such individual to his liberty and the control of his property. His status of being an incompetent does not arise until that issue has been tried and a verdict of the jury entered finding him incompetent. 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. It is "the finding of the jury" that such person is incompetent that creates the status of incompetency, and while an order entered on such verdict appointing a conservator of his person may be said to be in the nature of a proceeding in rem, yet such order depends on the determination of the question raised by the petition to have him declared incompetent, which is purely personal to him. Such person cannot be presumed incompetent for purposes of jurisdiction. Section I, chapter 86, of the Revised Statutes, relating to lunacy, which gives jurisdiction to the court, bases that jurisdiction on a petition filed by someone interested to determine the issue of sanity. To presume such person insane in order to establish jurisdiction would be proving the issue by assuming its determination. In the Sankey case this court considered the proceeding as one "in the nature of a proceeding in rem, *474 the purpose being to change the status of the child [admittedly a minor] in her relation to said Samuel Sankey." It is a general rule that the protecting arm of the State, under the doctrine of patens patri guards its incompetents, but it is a far cry from that principle to a holding that a petition having been filed alleging insanity, the court will assume incompetency in order that the protecting arm of the State might be thrown about the alleged incompetent. If the court cannot assume incompetency for the purpose of jurisdiction — and, of course, it cannot — then both such jurisdiction and the application of the doctrine of parens patri must await the process by which jurisdiction of the person of the alleged incompetent is obtained. No case cited in the briefs, or which we have been able to find, holds a contrary view.
It is conceded — as, indeed, it must be — that the State has jurisdiction to appoint a conservator of the property of a person domiciled in such State who is absent from the State but who has property within that State. This is on the ground that the State has jurisdiction of the property within its borders, and while it may be said that the judgment of the court affecting such property may likewise affect its absent owner, this is incidental to the State's jurisdiction over the property. As was said in Bickerdike v. Allen,
This brings us to the second question in the case — that is, the proceeding on the petition to find Stanley McCormick incompetent and appoint a conservator of his person being inpersonam, may the State nevertheless take jurisdiction of him through constructive service? It is stated by counsel on both sides that he has for more than twenty years lived in California under the control of a guardian of his person appointed in that State and that it is expected he shall remain there, and while it is conceded that he, an insane person, may not choose his domicile and therefore may not of his own volition establish a domicile in California, the effect of a determination by his conservator that he shall remain in California, if any, on his domicile is not argued but for the purpose of this case it is conceded by appellants that his domicile is in Illinois. It is also conceded that the court has jurisdiction of his property in this State and the appointment of conservators for it. In this opinion the term "citizen" is used as meaning a "domiciliary," though these terms are not in all respects synonymous.
Able briefs are presented to the point that the State may exercise jurisdiction over the person of its citizens in proceedings in personam though such citizens be outside the borders of the State. It is conceded, as it must be, that though such power exists in the State it can be exercised only through statutes of the State granting power to its courts to take jurisdiction of its absent citizens. The determination of this question therefore depends upon, first, the construction of the statutes of this State, and second, whether such statutes, if they authorize the courts to take personal jurisdiction of absent citizens of the State, contravene the due process clauses of the State and Federal constitutions. It is conceded, as held in Pennoyer v. Neff,
Section 2 of chapter 86 of the Revised Statutes, known as the Lunacy act, provides for service of summons on the person against whom the petition is filed "in the same manner by summons or otherwise as service is had in chancery," with the exception that in cases of personal service the summons shall be served at least three days before the return day instead of ten days, as required by the Chancery act. Sections 11, 12 and 14 of chapter 22 of the Revised Statutes, known as the Chancery act, direct how service may be made in chancery. By section 11 it is provided that service of summons shall be made by delivering a copy thereof to the defendant or leaving such copy at his usual place of abode with some person of the family of the age of ten years or upwards and informing such person of its contents. By section 12 it is provided that where the complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending an affidavit showing that the defendant resides or has gone out of the State or on due inquiry cannot be found or is concealed within the State so that process cannot be served upon him, and stating in such affidavit the place of residence of the defendant if known or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made as in that section provided, and shall, within ten days of the first publication, send a copy of the notice, addressed to the defendant whose place of residence is stated in the affidavit. Section 14 provides for delivering to the defendant residing outside the State a notice of the suit, together with a copy of the bill.
First, then, the question is whether, under proper construction of the Chancery act, constructive notice provided *477
by it may be made the basis of a personal judgment. The act provides for the service of summons on the person or a substituted service of summons at his place of abode on some member of his household of the age of ten years or upwards, or for constructive service by publication and mailing and by service of notice and a copy of the bill. The effect of constructive notice by publication, under our statute, has been frequently considered by this court, and it has been uniformly held that a decree or order rendered against a party who is beyond the limits of the State, upon constructive notice by publication, under our statute does not bind the party personally. (Austin v. Royal League, supra; Mosier v. Osborn,
It is evident that the act is primarily for the conservation of property of an incompetent. It has no application if the alleged incompetent has no property in this State. Chapter 85 of the Revised Statutes makes provision for such contingency. Chapter 86 is clearly intended to apply to persons residing within or without this State who have property in this State. It by its terms applies to cases where personal service may be had, and likewise substituted or constructive service.
It is argued that the language of sections 1 and 2, authorizing the court, "on the proper petition of any reputable citizen of such county, for the appointment of a conservator of the person or estate (or both) of such person," and where such person is found incompetent as described in the act, "it shall be the duty of the court to appoint a conservator for such person, or his estate or both," authorizes the appointment of a conservator for both the person and estate of a citizen of this State, though absent therefrom, who has been notified by constructive notice by publication and mailing. If such authority exists in that statute it is *480 to be found in the words "person or property or both." These words were evidently intended to cover the different cases that might arise as to incompetency, and it may well be argued that the statute shows a legislative intention to provide a conservator of both person and property of a domiciliary residing in the State, and a conservator for the property only where the incompetent domiciliary resides outside the State. It is by no means clear from the act itself that it is not so limited. This intent is indicated by the provision that the county or probate court of the county where the incompetent resides has jurisdiction of such petition, but if he is residing out of the State the court having jurisdiction is not the county or probate court of his residence in this State, if he has one, or last known place of residence in the State, but a county in which he owns real estate, if there be such, and personalty if no realty. This is evidently for the convenience of handling the subject matter of the conservatorship. If it were intended to also provide for a conservator of the person of a domiciliary of this State residing outside the State, it would seem that jurisdiction would have been conferred on the court of the county of his residence in this State rather than the county in which his property is located, which might be in the opposite extreme of the State.
There is another consideration which must not be lost sight of in endeavoring to determine the intention of the legislature. This concerns the practical difficulty of appointing a conservator of the person of one residing outside the State. It is provided, as we have seen, in section 2 of the Lunacy act, "no non-resident of this State shall be appointed under this act as conservator." Those who may be appointed, therefore, are residents of this State, and the inconvenience and impracticability of a resident of this State assuming charge and control of an incompetent person outside the limits of the State are so obvious as to require no demonstration. It seems clear that the requirement that *481 the conservator appointed shall be a resident of this State is made in order to have such conservator, together with the subject matter of the conservatorship, under the control of the courts of this State. Therefore, when considered in the light of the holdings of this court pertaining to service by publication on parties outside the State, it seems clear that if it was intended by the Lunacy act to authorize such method of obtaining jurisdiction of the person of a citizen absent from the State such authority would have been given in plain and unmistakable language, and, such language not appearing in the Lunacy act, we are of the opinion that it does not purport to confer the power on the courts of this State to take jurisdiction of the person of an alleged incompetent by constructive service where such alleged incompetent, though domiciled in this State, is absent from it. This being true, it does not become necessary to determine whether such an act, if it intended to confer jurisdiction on the courts of this State in such a case, would contravene the due process clauses of the State and Federal constitutions, interesting though such question is. There are likewise other questions, among which is that of comity and full faith and credit, which it is likewise unnecessary to consider here, as the views expressed dispose of the case.
We are of the opinion that the circuit and probate courts of Cook county were right in holding that the publication of notice and service by mail on Stanley McCormick did not confer jurisdiction on those courts to appoint a guardian of his person and that the Appellate Court erred in reversing the judgment of the circuit court.
The judgment of the Appellate Court is therefore reversed and the judgment of the circuit court is affirmed.
Appellate Court reversed, circuit court affirmed. *482