175 Mo. App. 543 | Mo. Ct. App. | 1913
A daughter of a Mrs. Miller filed an information in the probate court of the c-ity of St. Louis, in and by which it is stated that Mrs. Miller is a person “so indicted (sic) to habitual drunkenness and is of unsound mind, and incapable of managing her affairs; that she is the owner of property in the State of Missouri of the value of about $200,-0001;” that informant prays that an inquiry thereinto be had, according to the statutes in such case made and provided. This was duly sworn to by the informant. We assume that Mrs. Miller was duly served with notice of this information, as no point of lack of notice is made, and it appears that after the filing of the information a notice was served upon her attorneys by the attorneys representing the informant, of the taking of depositions in the case. Afterwards, on application of the attorneys for Mrs. Miller, a commissioner was appointed before whom the depositions were to be taken. No point is made as to this appointment. The testimony of several witnesses appears to have been taken before the commissioner, and a subpoena was issued by him directed to Gardiner, the petitioner here, summoning him to appear as a witness in the matter before the commissioner at a day, time and place named. Gardiner not appearing, the commissioner-
It is alleged in the petition for that writ that the detention by the sheriff was unlawful and that the petitioner is unlawfully deprived of his liberty, it being charged that the attachment issued was unlawful and the restraint illegal because the depositions so attempted to be taken were illegally and improperly being taken, the statutes of this State, as it is alleged, not giving an informant in a proceeding involving an inquiry as to sanity the right to take depositions. The writ of habeas corpus was issued by one of the judges of this court and by agreement of counsel a day in term set for the hearing. At the day set the petitioner appearing in person and by counsel, and the sheriff appearing by counsel, the cause was argued and submitted to the court.
There are only two questions involved in this case. First, is the proceeding in an inquisition to pass on the mental soundness of the party “a suit pending in any court in this State?” Second, is the informant “any party to” such suit, so that our statute applies? That section (Sec. 6384, R. S. 1909') provides: “Any party to a suit pending in any court in this State may obtain the deposition of any witness, to be used in such suit, conditionally.” Counsel for petitioner assume the negative on both these propositions.
The first proposition is settled authoritatively for us by our Supreme Court in State ex rel. Peper v. Holtcamp, Judge of Probate Court, 235 Mo. 232, 138
The second question as to whether the informant is a party to such suit has not been directly settled by any decisions of our Supreme Court or of the appellate courts, to which our attention has been directed or which we have been able to find on our own research. The learned and industrious counsel for the petitioner have cited us to a number of cases from the courts of other States in which it is held that these proceedings are ex parte and that the informant cannot control them even to the' extent of dismissing them after they have been commenced, notwithstanding, as under our. statute, the informant is responsible fo.r costs incurred in the prosecution of the inquiry. That is the case of Gralbreath v. Black, 89 Ind. 300. So it has been held as to proceedings against attorneys for disbarment. [See In re Attorney, 83 N. T. 164.] Speaking generally, however, any person having an interest in the matter may be a party in proceedings in which that party has an interest.
In the case of. Peter .Covenhoven, a lunatic, 1 N. J. Eq. 19, it is said (1. e. 21): “It is clear that a stranger has no right to interfere in a proceeding of this nature. He can neither sue out a commission, nor can he make himself a party to it by any application he may make to this court. ”
Our section 474, Revised Statutes 19091, under which this inquiry is. instituted, is very broad; it con
Here the information was filed by a daughter of Mrs. Miller. Surely she is not ‘ ‘ a stranger ’ ’ and surely she has an interest in the care and welfare of her mother. If the determination of the question of the interest of the informant was here open to us, we would have no hesitation whatever in holding that the relationship of daughter to mother was of such a close character as to give the daughter an undoubted right to institute the inquiry.
But that question of interest is not here open to our inquiry. In Eckerle v. Wood, 95 Mo. App. 378, 69 S. W. 45, Judge Barclay, speaking for this court and'passing on the question as to whether the party who had commenced proceedings under the provisions of section 74, Revised Statutes 1899, now section 70, Revised Statutes 19091, for discovery of assets, was a person interested in the estate, has said (1. c. 386):
“That, however, is a question not open for our consideration in this suit for a prohibition. The probate court, by the terms of the statute under discussion, has authority to cite the person charged, and require him to answer interrogatories after the filing of an affidavit of the executor or administrator or ‘other person interested in any estate.’ It made the citation in the instance under review upon the affidavit of . . . the husband of the deceased. The order in*550 that behalf amounts to a decision by the probate court that he is interested in the estate. On that fact depends -the right to proceed. But whether the decision of that fact by the probate court is right or wrong cannot properly be reviewed in a proceeding for a prohibition,” citing cases.
The same may be said of the action of the probate court in entertaining this proceeding, when that action is challenged here and when we are examining it under the habeas corpus act. It has long been the established law in this State, “that the same presumptions of validity must be entertained in respect to the judgments and orders of the probate court in matters of the administration of estates as aré accorded to the judgments and orders of the circuit court.” [Henry v. McKerlie, 78 Mo. 416, l. c. 429.] This case along with several others is cited and referred to by Judge Woodson, who in his dissenting opinion in In re Estate of Jarboe v. Jarboe, 227 Mo. 59, l. c. 99, 127 S. W. 26, says:
“Under the constitutional provisions cited (provisions relating to the powers of the probate court) this court has many times held that the jurisdiction of probate courts is original and exclusive over all matters pertaining to executors and administrators and all matters purely probate-; and that while acting within their jurisdiction their power and authority is just as full and complete and their judgments are entitled to the same weight and exempt from collateral attack in the same degree as are those of any court of general jurisdiction.”
After citing the Henry case, supra, along with several others in support of this, Judge Woodson adds that there are more than a hundred cases in which our Supreme Court has so decided. While this is in a dissenting opinion, the majority opinion was not contrary to the proposition but differed from those of Judges
• By section 474, if the information is filed with the probate court, that court may cause the facts to be inquired into, “if satisfied that there is good cause for the exercise of its jurisdiction,” and having acted in the present case, we are concluded on any inquiry as to the right of, or interest in, the informant to institute the proceedings.
The jurisdiction of the probate courts in inquisitions of sanity or insanity is as complete and plenary as it is in matters of administration. It is vested in that court by our Constitution, which, by section 34, article 6, ordains that the probate courts established by law “shall have jurisdiction over all matters pertaining to. probate business . . . the appointment of guardians and curators of minors and persons of unsound mind.” The opinions above referred to in the Henry and Jarboe cases and those there cited, are bottomed on this Constitutional provision. So that the probate court having entertained the information of this daughter of Mrs. Miller, the fact of the interest of the informant, and of her right to be a party to that proceeding, is conclusively settled so far as this procedure under habeas corpus now before us is concerned.
The reasoning underlying the decision of the Supreme Court of Indiana in the Galbreath case, supra, is thus stated by that court at page 301: “But the proceeding before us is not, in any sense, an action within the meaning of the civil code, and, therefore, we think the section cited is not applicable to the case in hand. This is an ex parte proceeding under a special statute, and has few of the qualities or attributes of a civil action.” This was in answer to the contention of the informant in that case that she had a right, having filed the information and instituted the pro
But in the Holtcamp ease, supra, our Supreme court decided that this proceeding was a civil action and in Hunt v. Searcy, supra, it is distinctly decided that a judgment of insanity, without notice to the person adjudged insane and without appearance, is void, whether the statute requires such notice or not; it is so absolutely void that it can be attacked in collateral proceedings. We cannot construe these two decisions other than as holding' that these proceedings for the determination of sanity are, under our law, not only suits within the meaning of that law, but are so entirely “suits” in the technical meaning of that term, that they cannot be proceeded with ex parte, that is to say, on one side only, by or for one party. The informant being one “party” and the one proceeded against necessarily being in court by notice, being the other and contesting party, they do not come under the definition of ex parte proceedings. “A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken o.r granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.” [Black’s Law Dictionary (2 Ed.), p. 452, title Ex Parte.]
It is true that our court has said, In re Crouse, 140 Mo. App. 545, 120 S. W. 666, that the statute concerning the adjudication of insanity is complete in itsélf and must be looked to in testing the proceedings in such a case. The point in decision in that case was confined to the question of the right of appeal in such cases. We held that under the peculiar provisions of the statute that right did not exist. Beyond deciding that point there is nothing in the decision in the Crouse case here applicable.
In Ewing v. Vernon County, 216 Mo. 681, l. c. 689, 116 S. W. 518, it is said that the absence of eases on a practice long followed by our courts and people is of some significance. Says Judge Lamm: “Show me
The power to compel attendance of a witness or party before a notary or commissioner and secure testimony, is undoubted, as see, in passing, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552. We hold that the proceeding, looking to an inquiry into the sanity of a person, is a suit, within our law; that the probate court having ordered the inquiry to proceed on the information of the daughter has determined conclusively for us here the right of the informant to institute that proceeding; that she is a party to a suit within the meaning of our law and as such can take and preserve testimony relevant to that inquiry by depositions.
It follows that the writ of habeas corpus heretofore issued must be quashed and the petitioner remanded to the custody of the sheriff, to be by him produced before the commissioner as a witness, there to remain, and abide the lawful orders of the commissioner.