90 Ind. 417 | Ind. | 1883
Lead Opinion
— This proceeding was instituted under sections 2545, 2546 and 2547, R. S. 1881, to have the appellant declared a person of unsound mind, and a guardian appointed for him. On the 28th day of November, 1881, the following written statement by appellee was filed in the court .below, viz.:
“ State of. Indiana, County of Decatur. '
“ In the Decatur Circuit Court.
“ The undersigned, citizen of this county, would represent that William M. Nyce is an inhabitant of this county, aged twenty-eight years, and is a person of unsound mind, and incapable of managing his own estate, and that said Nyce is-here personally in open court, and the petitioner asks that an inquest be had as to the sanity of said Nyce.
“ Respectfully submitted,
“ Orlando Hamilton.
“ Subscribed and sworn to November ’28th, 1881.
“ E. F. Dyer, Clerk.”
To this statement the clerk filed an answer of general denial, as required by the statute. The record states that the cause being at issue, and the said William M. Nyce being in open court, a jury was empanelled and sworn to try the cause that having heard the evidence, without leaving the box, the. jury returned a verdict that the said William M. Nyce was a person of unsound mind and incapable of managing his estate.. Upon the return of this verdict, appellant was adjudged a person of unsound mind, a guardian was appointed for him,, who gave bond and qualified as such.
Appellant filed no motion for a new trial, nor did he object; to the proceedings in any way until he filed the record in this-court in November, 1882. The objection now urged and discussed by his counsel is, that no notice was issued and served upon him previous to the trial below; that because no such notice was issued and served, the court below did not acquire jurisdiction, and the judgment should, therefore, be reversed.
The statute provides that upon the proper written statement, being filed, “ such court shall cause such person to be pro
If in this case appellant had been thus “ produced in court,” it could not be said, with reason, that additional notice would have been required to give the court jurisdiction. This mode of acquiring jurisdiction over the person is fixed by the lawmaking power, and we know of no reason why it is not,sufficient, or upon what ground it can be claimed that the Legislature has no authority to prescribe it.
Upon a fair interpretation of the record, it shows that from the time of the filing of the written statement by appellee until the return of the verdict, the judgment thereon, and the appointment of a guardian, appellant was in open court in attendance upon the proceedings.
Being thus present, it is immaterial, as it seems to us, whether he was produced by order of the court, by appellee, or appeared voluntarily. In either event, he would have the same opportunity to defend and protect his rights. See Hutts v. Hutts, 62 Ind. 214. If the proceedings had taken place in his absence, without any kind of notice, a different question would be presented, which we need not and- do not decide in this appeal.
It will not be necessary for us to go into a review of all the cases cited by the learned counsel for appellant.
We may say of them generally, that they are decisions under á state of facts different from the case under consideration, or under statutes requiring a certain fixed notice. In the case of Dutcher v. Hill, 29 Mo. 272, the person alleged to be of unsound mind had no notice and was not present in court. The ruling of the court was, that he should have had notice, or be in court, as required by the statute.
The case of Shumway v. Shumway, 2 Vt. 339, was decided under a statute which required notice to be given to the alleged non compos.
There being no error in the record the judgment is affirmed.
Rehearing
On Petition for a Rehearing.
— It appears from the record that the appellant was in open court and remained throughout the investigation, that the clerk filed the answer required by statute, and that a jury was empanelled and the issue tried as the law directs. Even if a notice had been necessary, as the counsel insist, it could have done nothing more than secure the production of the person whose mental condition was the subject of investigation in open court, and this right was fully accorded him, as well as all rights consequent upon it. The whole purpose of a notice was accomplished and no harm re-
Petition overruled.