*1 B. L. C. Hyatt, R. Haynes, Robert Roark Maudie (2d) S. W. Piper, Appellants. and C. W. Davis, I. H. Smith 410. Two, April 20,
Division *2 Basse <&Brown for Robert Hyatt, L. C. B. I. H. Smith; Davis and Piper; Walker for Montgomery, Pierce C. W. Martin Montgomery & Haynes. R. respondent. Garnett for Bussell *3 COOLEY, Appeal by defendants an order of the circuit C. sustaining plaintiff’s new for trial. The for motion .is action imprisonment. instituted in the
false was circuit court-of Saline County change County, of venue to where it on sent Howard $10,- petition counts, praying Plaintiff’s was in two was each tried. imprisonment for false damages, being the first actual named seven defendants— prosecution-,- and second for malicious Ralph Ussery, plaintiff’s husband appellants the five and J. S. Insane, at Ful- Hospital for the Hanks, Superintendent of the State count as to the second ton, plaintiff Missouri. Before trial dismissed during trial Ussery, the' and also dismissed action to J. proceed on the Hanks, leaving the action to Ralph dismissed as to Haynes, against remaining defendants, R. who first count the five C. Hyatt, B. L. -C. county physician then Robert County, Saline county, Smith, judges Davis I. court of said and H. county court, are Piper, county W. who clerk and clerk of said appellants plaintiff respondent here. shall refer to the We
plaintiff tried appellants and to the as defendants. The cause was The sus- jury, to a which returned a verdict for defendants. record, plaintiff’s ground, tained motion for trial on the stated of new “conflicting jury.” given instructions erroneous alleged imprisonment complained false the confine something ment of Hos over two months in the State Fulton, in pital pursuant adjudication for the Insane at to an sanity by County County May 15, Court of Saline leading Plaintiff proceedings contends- that to her confinement illegal effect, petition, alia, alleged; were and void. Her inter wrongful conspiracy among the defendants- acted maliciously, during trial, offering when defendants were evi tending dence to show that conspiracy, there had been no she an nounced, through'her-counsel, relying upon-a “she is not con spiracy defendants;” also, by between the court, and she leave of her; petition allegations here, struck out of of malice. And we add tending there no wrongful evidence to show malice or intentional *4 (cid:127) any part conduct on the of defendants, any nor was there conspiracy. evidence of apparent from the record before us that proceeded and the: trial court theory below that the proceedings county adjudication insanity and the of were invalid defendants,’ and therefore the of them who Or anything had to do. with confinement, plaintiffs were liable as for imprisonment regardless false of whether or not good acted in faith, regardless and without malice plain whether or not tiff, in fact insane and a fit for treatment in said hos pital. Defendants prove offered evidence to that such were the facts refused to admit it. instruction, Plaintiff’s main sub mitting case, theory framed on that theory and the same reflected in the court’s refusal of requested by instructions defend - necessary It will be ants. for us to determine, first, whether there’ adjudication insanity was a valid against plaintiff, second, not, whether, if there was thereof, the defendants are liable in this action. The determination of questions requires those a state ment of the facts relative to adjudication. said living woman, question plaintiff
At the times in was a married County. with her and her -husband husband on a farm in Saline She ,in their children, living had four homes married and elsewhere May 14, 1935, children, spouses own. of some On said four being there. home, met her them, plaintiff’s at she and husband meeting. rejected the reason The court evidence as On day husband, plaintiff’s Ussery, filed with J. S. county in.writing, court a as follows: statement Hospital. County Patient to State Court to Send ."Petition ' ‘ County County, To the of Saline Missouri: Court Honorable residing afore- Undersigned,
"The a citizen and state insane, hereby Ussery Bend, Mo., is said, states that Maudie of Malta year’s duration; less than 1 that she has not that her is of support Hospital, her at a State and is resident estate sufficient and State aforesaid. said Ussery Haynes proven by and Dr. R. "These facts can J. S. be respectable physician. day May, "This 14 1935. " (Signed) Ussery.” J. S. thereupon The court caused to issued delivered defend- following Haynes, plaintiff, upon ant R. C. served notice: County, County "In the Court of Saline Missouri "May aj’d Term, 1935. Ussery: "To Maudie hereby writing, that an
"You are notified sub- information' to, Court, and sworn has been filed this said Information al- scribed you leging incapable of unsound mind of man- are your affairs; aging inquiry and that an- will be evidence your County touching mind, the condition of before the Court heard City County, Missouri, at its office :00 o’clock of Saline day May, 1935, 15th Marshall, County, Missouri, on Saline hearing, at you present are to be said at entitled which time (cid:127) by counsel. represented my day May, under hand and seal of said office "Given
"(Signed) Piper C. W. County "Clerk of Court. Cameron,' A. "(Seal) G. D.’C.” Haynes requested (who At the time the court Dr. same was coun y , ty Mrs. as to her mental physician) to examiné condition. Usser and, Haynes proceeded according home his tes Dr. Ussery, timony, insane, Mrs. concluded that she was served examined reading her, day it to and on same the' *5 notice twice the following thereon: return
"Return Haynes, .Comity undersigned, Robert C. 'of "I, the State certify hereby I served the-above Notice in: Person Missouri, that do day 'alleged May, on the above on insane this the County Missouri, by reading the of Saline and State copy delivering same to the said-and thereof. to-a Haynes “(Signed) Robert C.- County, “Saline Missouri.” might thought signed it return, While be from as made and his him, Ussery neg- he copy that delivered a notice to Mrs. fill 'in space printed lected to return (probably blank form) by writing her name oral that therein, the evidence indicates copy. he did not leave a He it testified that read to her he twice say explained meant, to her in detail what did not but he copy, he left nor copy. that he had been furnished a Plaintiff’s chil- dren twice, testified that he read the their none notice mother to. copy. that he left a be- point mentioned That was not ing by plaintiff may at trial, proof stressed for the which account being entirely thereon clear but we conclude the record Haynes as a that Dr. copy whole did not deliver a the notice Ussery. Mrs. May court, notice, 15, 1935, county
At the time named in the being duly in session, judges being all present sitting, three held a hearing, finding, judgment order, entered of record its follows: appears
“And now it Ussery, the court J. S. a citizen County, Missouri, Saline has writing filed information in that Maudie Ussery Pass, Missouri, Grand insane; that her is of less year’s durcation; than sup- one has not she estate sufficient to port Hospital Fulton, her at State No. 1' Missouri, at and that she County, Missouri; a resident of Saline now the above coming heard, cause on to stated, being proved and the facts as good witnesses, two one of by a respectable practicing phy- whom is sician, it is Ussery considered the court that said Maudie a proper person Fulton, insane and Hospital be sent to the at State county Missouri, patient. as a Ussery
“It is therefore ordered court Maudie said Hospital Fulton, Missouri, undergo sent to State No. 1 at treat- county patient, thereat as a and that the this make ment clerk of court Superintendent out and transmit Hospital copy said with the request order that the said Maudie be admitted Hospital.” to said
Plaintiff, alleged person, hearing. insane did not at appear appointed attorney her, a reputable represent hearing behalf, who on her but it attended is not shown that she anything appointment to do with his appearance, "or or knew the time: thereof at Pursuant to said and order to the hospital. committed Such further néeessary facts as will be stated in the course of opin- our ion.
536 7741), Ann., p. 8636, (Mo.
Section Statutes Stat. Revised a to send power shall provides that the have to several courts count}*- to admis- may as be entitled hospital poor state such of their insane maintenance support the thereto,- provides sion further county from which patients expense of the therein of such at the herein to reference [Except may indicated sent. as be otherwise Statutes, 1929, corresponding sections statutes will be Revsied By provide procedure. the Subsequent sections Ann.] Mo. Stat. county residing in shall file 8643, proper the Section “Some citizen county statement, county the clerk of of such a’ the court substantialty (setting out the writing, which shall as follows:” be form). require statute that the statement be verified. The does not (quoted instant case The statement filed the J. substantially The above) of statute. complies with section the thereupon section, 8644, provides that the issue sub- next clerk shall persons the and 'sUch others he poenas for named witnesses time, appear proper, commanding specified them to at a which think By day thereafter. be the first the first session court shall the upon person apprehended shall a poor a be Section whenever required he to convene the supposition is insane clerk the upon sanity purpose passing forthwith for the court hearing, provides for the person. or of such Section court, ordered, jury, a if be and that at least before before one reputable: physician. witnesses shall be a one examined The does, hearing require jury one that the be before unless statute a (cid:127) validity hearing question a is ordered. of the before demanded, jury, jury a is not is not court, where raised without - discussed, hearing may and will not but that such in this case be court, lawfully probate held a similar statute in the in an under Moynihan, insanity proceeding, In re 62 S. W. see (2d) (of 8647-provides if, witnesses) after such
Section examination jury court, employed, or the if one has be satisfied ‘-shall statement,” (meaning in the. of the set forth the truth facts 8643), the shall filed under See. cause suitable statement decision, record, “upon or, their own where to be entered order jury rendered, verdict;” upon the of the has been the verdict person shall set forth that the that the order further found be in hospital, naming fit sent to a state is a sane undergo therein; treatment and that court shall hospital, require the medical witness make out such a detailed his further is-required Section and that tory the case clerk copy forward a certified of said court shall forthwith of the order superintendent hospital, accompanying same of court person for admission of the found'to insane. request with a duty of the 8649, it is the clerk of the Section Under
.537 superintendent designated hospital forthwith to transmit to the of the copy and, patient certified if court’s order advised that the received, county, can be to “issue his warrant to the sheriff of his Or commanding other person, suitable him to arrest forthwith convey insane hospital designated him to the- state If necessity, may order. the clerk its be-satisfied of he authorize *7 (cid:127) one or assistants employed. more to be Said warrant shall be sub- stantially (setting form). as follows:” out the gives county juris
It" will be seen that the statute court sanity to inquire persons alleged diction into the insane adjudicate and to thereon, sought it persons where send such a state hospital expense only at the and it is the court authority that has to order an person insane sent to a state hospital at public expense. When, therefore, required by the statement Section 8643 was filed the jurisdiction court was vested with says matter. Plaintiff upon face, the statement was void its not because verified. statute require did not it to be verified and was void for want of verification. It is asserted the no (copied above) tice was void on its face purporting to be upon based “an information charging subscribed and sworn to” and plaintiff “incapable managing affairs,” her whereas the “information” —statement filed—was not sworn to and did .riot allege plaintiff “incapable managing her affairs.” Said allegations of the unnecessary may notice were regarded surplusage. We do not think rendered the notice void.
It is further contended that the service of the
in
notice was
that, therefore,
legal
valid and
plaintiff
effect
had no notice. This
presents
contention
a more
question.
pre
serious
In the statutes
scribing
procedure
inquiring
sanity
courts for
into the
poor persons alleged
sending,
to be'insane and
them
a
state
hospital, as
1935,
such statutes existed in
provision
we find no
alleged
notice to the
person.
insane
The statute has since been
amended in
respect
require
1937,
so as to
510,
notice.
p.
[Laws
opportunity
sec.
But notice and an
to be
8644.]
heard are essential
process of
judgment
to due
law and a valid
cannot be rendered with
person
rights
out notice to the
passed upon.
whose
are to be
Se.e:
Searcy,
158,
Hunt v.
167
holding
Mo.
provision
alleged
for notice to the
person and,
insane
course,
there-
fore, none as to the manner
notice if one were is-
of service of snch
sued. Counsel
have been able to find but
have cited no cases and we
dealing directly
one
question of
whom such
with the
how
Maccabees,
App.
served, viz., Skelly
notice must
v. The
alleged
333,
insane
540 “It 26, is said Law, section Ruling page 813, 11 Case
In law, essentiál always has of the common and-seems been doctrine judges whose courts, that the system of of to the maintenance -liable not be should controversies duty pass it is to and-determine many -alleged In errors-. or for their errors personally sued succeeding this im- paragraph, next is cases, as shown of the general jurisdiction, courts of judges of munity confined to has been limited.” special or distinguished jurisdiction as from-those whose — — tendency a clear 815, “In latter .-castes But, page section 28 between altogether the discrimination abolish has been evident to justices peace and rank, to extend to -the judges different immunity personal responsibility judicial lesser officers other -extent that their and acts the same for the correctness of decisions recently has granted judges superior courts. The law it is ‘ carefully judge The thus in a considered case: summarized jurisdiction (a) he limited is liable when a court inferior or subject matter, though general jurisdiction of even without a acts good has decision, faith, his that he such act involves his fully jurisdic- (b) judge his jurisdiction, When such acts within jurisdiction subject matter, and has e., has of the i. when he tion, case, particular he acquired jurisdiction person of the also maliciously ‘When liable, though corruptly. ,(e) act he both judge judicially respect to a matter of which such acts with general jurisdiction, he but in the -ease has ac- has he affected, he if quired jurisdiction person no is not liable he present previous his or affirmative decision that has act involves authority jurisdiction proceed particu- such- case, provided (1) presented lar has been -to him a colorable cáse fairly or of 'his permits which calls for the exercise thereto; (2) good faith, he determined in respect provided has corruption, presented the case calls for without malice ’ ” general jurisdiction. of his exercise ’ ‘‘ ’ carefully quotation case referred to the -above considered 1914C, Ann. Douglass, 175 Ala. 57 Broom v. So. Cas. (N. S.) 164; in Ann. 1155, 44 L. R. A. and see notes said case Cas. 1914C, (N. S.). L. A. and 44 R. are, probate generally speaking, our courts
While yet, jurisdiction, Fulton, said in courts of limited State Mo. 345, 348, Beazley, 133 W. App. ease Johnson v. prior decisions), (overruling principle some announced jurisdic the probate “while courts are courts of limited yet power provided statute, tion and their to act is exclusively places jurisdiction their as the statute within matters general footing jurisdiction, they stand on same courts of presumptions indulged regularity are to be in favor same *10 validity proceedings judgments their and the of their and orders
541 jurisdiction. exclusively their confided in relation the- matters .to gen- a court of orders of judgments indulged as are favor in. therein principle and the has been jurisdiction. This eral case cited [Desloge v. this State. later cases in in all the approved announced v. cited; Ancell and cases 601, 283,W. 587, 94 S. Tucker, 196 Mo. ” opinion of the W. 209, 227, 709.] 122 S. Bridge Co., 223 Mo. adopted Fulton, supra, v. in Appeals State Springfield Court S. W. 938. Appeals, St. Louis Court it 601, 286,W. l. c. 94 S. 196 Mo. Desloge Tucker, supra, v. In jurisdiction, limited are “though courts probate courts that is said statutory powers, their constitutional moving orbit of yet, in the courts, and not inferior estates, are in the administration indulged to sus- are and intendments same liberal presumptions collaterally) are (attacked jurisdiction proceedings and their tain [See, also, to like indulged in other courts record.” behalf of 395, 15 S. W. Wolfe, 391, 103 Mo. 426.] v. effect, Brawford determining question examining into and In the matter hospital court committed plaintiff should be whether jurisdic gave subject matter. The statute it jurisdiction had statement, provided and a written that class cases tion of invoking particular case. its action statute, had filed been upon her it been before notice had served to determine that had judicially. against doing In so it judgment her. acted could render by any case wheth question “The first to be decided . ” v. jurisdiction point or not it has of fact Hartford [Bealmer er 501, 954, See, Co., also, 281 Mo. 220 W. Fire Ins. S. Mahon 372; Hadley Bernero, (Mo. App.), Estate 246 W. v. v. S. Fletcher’s 64; Dowdy Wamble, 549, 78 S. W. App. 103 Mo. v. 561, 66 said, Baty, v. 166 Mo. S. W. it is W. In State 489.] indulged -of the correctness of “Every presumption will be in .favor general jurisdiction, proceeds a court of it the action of (Citing cases.) by wrong. the-record is silent about right and not If necessary or, jurisdiction, properly, more to cause a matter eonfer instance, the it to attach in the existence of such matter appearing contrary) presumed.” (nothing record to .of wil] Hadley Bernero, supra, same effect see the record And where necessary give of a finding fact circuit court- silent to. decided, jurisdiction but-the court retained and appellate the ease. a, record, showing made., It is shown 'that not did, given not so judg- it found notice state its it. ment. The statute fact such should be stated in pipyide did. required or order to be of record. entered But since n finding necessary determination before the court could judgment against plaintiff. think, final proceed-to,, light we principles above, enunciated in cases have cited of- we determine.-, indulged must be did so presumption In so de- *11 served, it but legally termining erred, notice was it because the function, for which judicial of a in the exercise was an error made law, liable be held principles judges cannot, on well settled ' ' ' (cid:127) damages. . Haynes' Dr: Haynes Piper be held liable. Neither can Dr.. He hospital. plaintiff te part in the commitment of took no actual that there is no contention was called and testified as witness coun testimony. also, at the behest He false or biased he gave made, by the statute to' be required court, ty made out the certificate And there hospital. superintendent transmitted to . n ’ ' ' matter ended. his connection with the himself), is it (he did not do clerk, through deputy his Piper, as It was based by'statute as commanded. plaintiff, the notice to sued through also, his filed. He statement, theretofore sufficient on a by re commitment, again statute as deputy, issued warrant order, judgment and which was on the court's It was based quired. Haynes Piper, as well As to on its facfe. fair and sufficient conspiracy, no evidence county judges, repeát there was we acted wrongful appear All conduct. have or intentional malice honestly good faith. throughout urged briefly other contentions how one or two We mention “information,” or statement urges that by She now plaintiff.. day hearing' May 16th, a after the not filed till by filed Mr. on the that This contention based fact court. held paper, that as well as the notice on which' stamped or marked the clerk May 16, appears It return, 1935.” his “Filed Ilávnes made Dr. lodged originally with the testimony papers those were Piper’s put,on him later. However filing or mark .stamp court and. the time of the ac filing stamp is not conclusive the' court's record view,of parts of other filing, tual May 15th, recites entered that“J. judgment, court’s files. The information,” one; He filed but etc. dated has Ussery . . . filed May reciting 14th, on that information was issued May Notice 14th. , of that The return of service notice shows service filed.” “has been this, May And in addition to all was, 14th. thereof, on such as May alleged the statement was herein petition plaintiff’s filed. Haynes’ issued and Dr. return the notice This contention without merit.' May made thereon void,. says the of commitment was now warrant also Plaintiff 1, Fulton,'Mo.,” Hospital'No. instead to “State directed it, actually .accompanied some members served Davis, B. who to C. Davis another to family. warrant named plaintiff’s of’ ’ by statute,' prescribed form According executing assist .it. “The,State to be the warrant 8649, supra, directed Section the person name of 'The is who Missouri, to —.” space. in the blank written But should be ivarrant the" execute evidently was not below. afterthought. contention is an Contra, plaintiff in her set she petition out the warrant under which hospital, there said she had been and taken to arrested B. Davis, there set out the warrant directed to now contends it should have in order to authorize to exe- him it. effect, cute In these we need not consider if circumstances what any, might the' otherwise misdirection the warrant have. plaintiff’s again
At the at of all close of evidence and close *12 requested peremptory the evidence defendants all instructions directing for requested them. The court refused those in- verdicts gave declaring structions and for an instruction that she illegally hospital directing been confined in the a verdict for against her “all or defendants” found to have “in- causing confinement,” her strumental or to have contributed there- to, directly indirectly. It is contended that certain instructions given plaintiff’s on behalf defendants were in conflict with said instruction, perhaps, extent, to some were. The circuit concluded, ground court no doubt so as was on that it sustained the motion new trial. In we the view take of ease it is needless question to set out the instructions or conflict, consider opinion our should have directed verdict for defend- jury verdict, right But returned such ants. since result is by permitting that reached verdict to stand. The order of the cir- sustaining cuit motion for new trial reversed remanded, cause directions to the circuit court to set aside order, reinstate the and enter judgment said verdict in accordance Bohling, Westimes and concur. GC., therewith. foregoing
PEE opinion by CUEIAM:—The Cooley, C., adopted opinion judges the court. All the concur. Ruby Alonzo L. Pulliam and Mann, Appellant, v. Etta Pulliam. (2d) 127 W. 426. Two, April 20, Division