| Conn. | Jun 5, 1916
Lead Opinion
The contention of the appellant has been that upon the facts as they should have been found the court erred. Our study of the evidence has failed to convince us that the court committed error either in finding material and relevant facts contrary to the evidence, or in refusing to find such facts.
The appellant, Mrs. Schutte, was committed to Dr. Givens' sanitarium by order of the Court of Probate for the district of Stamford, pursuant to General Statutes, § 2744. That section gives the Court of Probate for any probate district of this State power to commit, after hearing had, one who is found by it to be (a) a resident of, or domiciled in, the district and (b) an habitual drunkard, upon application by (c) any of his relatives and (d) upon such reasonable notice to the alleged inebriate as it may prescribe.
The appellant attacks this order of commitment because of lack of jurisdiction to issue it upon two *534 grounds: first, that she was not a resident of the probate district of Stamford, and hence not subject to the jurisdiction of the Court of Probate of that district; and second, that the application upon which the order issued was made by Mr. Mattern, a brother-in-law of the appellant, and not by a brother, as it recites, and because the application was not made by a relative of Mrs. Schutte the Court of Probate was without jurisdiction to issue its order.
The word "relative" or "relatives," when used generically, includes persons connected by ties of affinity as well as consanguinity. Webster's New International Dictionary; Bouvier's Law Dictionary; WapelloCounty v. Eikelberg,
The term "any of his relatives," in § 2744, has never been before us for construction. The purpose of the statute is to protect the person and safeguard the rights of the person alleged to be an habitual drunkard, by providing that the application shall be made by one who has a public interest, as a selectman, or by one who has a private interest, as a relative. The degree of the relationship is not specified in the statute. Near relatives by affinity are generally bound by a closer tie of affection to their relative than are his remote relatives by blood. The interest of the relative by affinity may be greater than that of the relative by blood. *535 Before the order of commitment can issue, the court must find the fact of habitual intemperance, and that service has been made upon the alleged inebriate. The very informality of procedure in our courts of probate will tend to prevent a finding of these jurisdictional facts either ill-advisedly or through the imposition of a relative by affinity.
The court found that Mrs. Schutte was a voluntary resident of Stamford at the time the order of commitment was issued. We cannot say as matter of law that the court erred in making this finding. Shortly after the commitment order, the attorney of Mrs. Schutte procured the appointment of a conservator of her upon the representation that she was a resident of Stamford; and her course of conduct after her commitment recognized and approved of the court's action. The appellees do not and could not properly claim that the bringing of Mrs. Schutte into this State by force or fraud, and the compelling her presence within the State against her will, would have made her a resident of the State and have conferred jurisdiction upon the Court of Probate. The finding not only shows that her residence was a voluntary one, but her conduct subsequent to the commitment also indicates her full acquiescence in the fact of her residence in Stamford.
The order appointing a conservator is attacked for want of jurisdiction in that Mrs. Schutte was not at the time a resident of Stamford. The finding shows the contrary. Further, Mrs. Schutte having invoked the jurisdiction of the Court of Probate upon her representation that she was a resident of Stamford, will not be permitted to deny that jurisdiction because of the claimed untruthfulness of her representations. Mrs. Schutte claims, in addition, that she was capable of managing her affairs when a conservator was appointed. The finding shows the reverse, and we think *536 the trial court was justified in so finding. The order appointing a conservator was made April 27th, the petition for its revocation was filed the following May 6th. It is not based upon the claim that there had been a change in the condition of Mrs. Schutte, but upon the claim that the order, when made, was erroneous, and based upon facts contrary to the evidence.
The ruling dismissing the appeal was right for another reason. From the original order of commitment and the order appointing a conservator, no appeal was taken. The appeal to the Superior Court which we are considering was from the denial by the Court of Probate of the application to set aside the order of commitment and the order appointing a conservator. The appeal before us is from the judgment of the Superior Court dismissing the appeal from the Court of Probate. The Court of Probate was asked to revoke its own orders previously made and from which no appeal had been taken. If the Court of Probate for the district of Stamford had power to revoke its own orders, upon the facts before it, it could take jurisdiction of the application, otherwise not. Our courts of probate possess such powers only as are expressly or by implication conferred by statute upon them. Sears v. Terry,
The same question was before us in Delehanty v.Pitkin,
The reasoning of that opinion seems to us sound, and the case must be regarded as authoritative for the proposition that the power of our courts of probate to set aside or modify their own decisions is limited to the instances given by statute; beyond these the Court of Probate cannot go. A final probate decree can be set aside, reversed or modified, only upon appeal duly taken from it. If the lack of jurisdiction appears when it is too late to take an appeal, the judgment will fall when collaterally attacked. If hardship of frequent occurrence result to the innocent from the application of this rule, the legislature "may be trusted to apply some appropriate remedy," as we remarked in Delehanty v. Pitkin,
There is no error.
In this opinion PRENTICE, C. J., THAYER and RORABACK, Js., concurred.
Concurrence Opinion
I concur in the result, on the ground that the Court of Probate has no power, in the absence of express statutory authority, to revoke its own decrees, and, with some hesitation, in the conclusion that Mrs. Schutte was a resident of Stamford; but I think the latter conclusion ought to be put more emphatically on the ground that she had already evidenced an intention to take up her abode in Dr. Givens' sanitarium for an indefinite time, before the application for her commitment was made. *538
The statute (§ 2744) limits the jurisdiction in these cases to "the Court of Probate for the district in which he resides, or is domiciled"; and this very properly restricts the inquiry into the habits and reputation of the person whose liberty is at stake, to a district where he may be supposed to be known, and from which it may be assumed that disinterested witnesses may conveniently be summoned.
Since this woman already had her domicil and residence in the State of New York on March 26th, the Court of Probate for the district of Stamford was without jurisdiction in the premises on March 27th, unless she had acquired a new residence in the meantime. This she could not do in twenty-four hours except by forming an intention to remain in Stamford long enough to give her the character of a resident, as distinguished from a transient person; and the only evidence of such an intent in this case is found in her written requests for treatment, which may be supposed to express an intention to remain for an indefinite time for that purpose, when corroborated in that particular by her subsequent conduct.
Residence, as distinguished from domicil, means a temporary residence; but when the word is used as a limitation of jurisdiction, it must also be distinguished from a place in which one is transiently found. In that restricted sense, residence is the place where one has temporarily fixed his abode with an intention to depart, which is definite as to purpose but indefinite as to time. Brisenden v. Chamberlain, 53 F. 307" court="None" date_filed="1892-12-28" href="https://app.midpage.ai/document/brisenden-v-chamberlain-8845533?utm_source=webapp" opinion_id="8845533">53 F. 307, 311. *539