Opinion
No. 21769.
March 24, 1952.
Kem, Gordon Gilmore and Donald W. Johnson, all of Kansas City, for petitioner.
Ewing, Ewing Ewing, Nevada, for respondent.
This is an application to this court for writ of habeas corpus. The application states that Gilbert Witmer is unlawfully confined and restrained of his liberty at State Hospital No. 3 for the insane at Nevada, Missouri, by Dr. Paul L. Barone, Medical Superintendent of said Hospital.
The petition alleges that the probate court of Cedar County, Missouri, acquired no jurisdiction to inquire into the sanity of the petitioner because (a) the verified information did not allege that the said Gilbert Witmer was an idiot, lunatic, or person of unsound mind, and incapable of managing his affairs as required by Sec. 458.020, R.S. 1949, V.A.M.S.; and that Vernon Reynolds was sheriff of Cedar County and signed the information and served notice of inquiry and, therefore, such service was illegal and did not give the probate court jurisdiction of the petitioner.
Our writ was issued and Dr. Barone filed return denying that petitioner is illegally confined and restrained in said hospital. As authority for confining Witmer, the return alleges in substance the following state of facts and proceedings: That on or just prior to June 17, 1950, Vernon Reynolds, Sheriff of Cedar County, received complaints from citizens of said county that Witmer was insane and dangerous; that thereupon the sheriff visited Witmer and believed him to be of unsound mind and dangerous to himself and others and took him into custody, as it was his duty to do under the provisions of Sec. 458.040, and thereupon signed and verified an information, as prepared by the clerk of the probate court, alleging that Witmer was of unsound mind and dangerous to himself and others; that upon the filing of such information the clerk of the probate court issued and delivered to the sheriff a notice directed to the said Witmer stating the nature of the proceeding, the time and place when such proceedings would be heard, and that the said Witmer was entitled to be present and to be assisted by counsel; that the date for hearing of such proceeding was June 24, 1950; that on June 17 a warrant for the arrest of the said Gilbert Witmer, as an alleged insane person, so deranged as to endanger himself and others, was issued by said probate court commanding the sheriff to forthwith arrest the said Witmer and confine him in some suitable place until the sanity proceedings against him could be determined; that the sheriff, acting in performance of his duty, served the above notice on June 18 and made return thereof, and continued to confine him under said warrant; that the hearing of said sanity proceeding was continued until July 10; that upon such date the probate court, finding that the said Witmer was without legal counsel, appointed J. W. Campbell, an attorney, as counsel to represent Witmer; that Campbell accepted such appointment in open court and waived a jury trial as attorney and on behalf of said Witmer; that upon trial and after hearing witnesses, the probate court found Witmer to be a person of unsound mind and incapable of managing his affairs; that no appeal was taken from said judgment; that on August 25, 1950, the probate court entered an order for the confinement of the said Witmer in said State Hospital, and that he is holding said Witmer under and by virtue of said proceedings and order.
The answer to the return realleges that the proceeding was void for the reasons assigned in the original petition, but admitted that notice of the hearing was served on him by the sheriff on June 18.
When the cause came on for hearing in this court we received certain documentary and oral evidence, which will hereafter be referred to.
In his brief petitioner asserts that the probate court acquired no jurisdiction of the subject matter, i. e., the sanity hearing, because of certain alleged fatal defects of the information; and did not acquire jurisdiction over his person because the complaining witness, who was the sheriff of Cedar County, also served notice of such sanity hearing. He charges that the information "was fatally defective in failing to allege conjunctively that Witmer was an idiot, lunatic, or person of unsound mind, and was also incapable of managing his affairs, as required by the statute. * * * Sec. 458.020. * * * The allegation in the information that Gilbert Witmer was insane is not sufficient in and of itself to confer jurisdiction on the probate court."
The essential part of the information reads: "The undersigned, a citizen residing in the county and state aforesaid, on his oath, * * * states: That Gilbert Witmer, a resident of the county and state aforesaid, is insane; that said insanity is less than two years duration; that the said Gilbert Witmer has sufficient estate to support himself at a State Hospital for the insane; that the said Gilbert Witmer is so deranged as to endanger himself and others and will be dangerous to the safety of the community by being at large, and that he is now being confined or restrained; and that the foregoing facts can be proved by * * *."
On the day of the filing of the information the probate court entered an order reciting the filing of the same and ordered the issuance of notice to the said Witmer of the time and place when said hearing would be had, and made this further finding: "And it appearing to the court that the said alleged insane person is so deranged as to endanger himself and others and would be dangerous to the safety of the community by being at large, a warrant was issued to the sheriff of Cedar County commanding him forthwith to arrest said person and confine him in some suitable place until the proceedings herein have been determined." The cause was continued until July 10, at which time a hearing was had before the court, after the appointment of an attorney to represent Witmer, and the court found "that said Gilbert Witmer is a person of unsound mind and incapable of managing his affairs."
A guardian was appointed, and on August 25, 1950, the probate court made the following order: "Now on this day the court takes up the petition of W. M. Price, guardian of the person and estate of Gilbert Witmer, incompetent, asking for an order restraining said ward. The court finds from the evidence that the said Gilbert Witmer, incompetent, has become unmanageable and persists in operating cars at a high rate of speed on the highways in such a manner as to endanger his life and the lives of others and that said Gilbert Witmer has refused to abide by the authority of the guardian. It is therefore ordered and adjudged that the said Gilbert Witmer, incompetent, be restrained and that he is hereby committed to the State Hospital at Nevada as a private patient to undergo treatment. It is further ordered that a certified copy of the order be transmitted to the Superintendent of said Hospital." The petition of the guardian, upon which the above order was made, is not before us, either by the pleadings or the evidence. Its sufficiency is not called in question.
There was testimony, at the hearing before us, that at the time of the filing of the information and at the time Witmer was committed to the State Hospital, he was so deranged that he was dangerous to himself and to others. There is no allegation in the pleadings and there is no evidence that Witmer is now, or was, at the time he was committed, a person of sound mind. He relies entirely upon the lack of jurisdiction of the probate court to inquire into his sanity for his right to discharge from custody by a writ of habeas corpus.
He asserts that the sanity inquisition was a proceeding under Sec. 458.020. The material part of this section reads: "If information in writing, * * * be given to the probate court that any person in its county is an idiot, lunatic or person of unsound mind, and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, * * * shall cause the facts to be inquired into * * *." (Italics ours.) We think there can be no doubt that the information sufficiently complies with the first requirement that Witmer was a "person of unsound mind". It charges that he is "insane" and is "so deranged as to endanger himself and others and will be dangerous to the safety of the community by being at large, * * *." It was not necessary for the information to use the precise words of the statute; language of equivalent import will suffice. State ex rel. Bevan v. Williams, 316 Mo. 665, 669, 291 S.W. 481.
However, petitioner contends that the second essential jurisdictional allegation ("and incapable of managing his affairs,") is omitted in the information, and no words of similar import are found therein, and therefore the probate court had no jurisdiction. In support of this contention he cites: State ex rel. v. Montgomery, 160 Mo.App. 724, 733, 142 S.W. 474; Burke v. McClure, 211 Mo.App. 446, 451, 245 S.W. 62; Ruckert v. Moore, 317 Mo. 228, 237, 295 S.W. 794; Harrelson v. Flournoy, 229 Mo.App. 582, 78 S.W.2d 895, 900; State ex rel. Bevan v. Williams, supra, 316 Mo. at page 669, 291 S.W. at page 481. These cases do hold that an information for a sanity inquiry filed under Sec. 458.020 must, in effect, allege that the party complained against is not only a person of unsound mind, but must also charge that he is "incapable of managing his affairs," or words of similar import; that both allegations are essential jurisdictional facts and unless both are sufficiently alleged in the information the entire proceeding is void. Can it be said that the information alleges sufficient facts to charge that Witmer was incapable of managing his affairs? In State ex rel. Bevan v. Williams, supra, 316 Mo. 679, 291 S.W. at page 482, the court held that it was not necessary to allege the jurisdictional facts in the precise words of the statute; language of an equivalent import will suffice; and that the word "affairs," as used in the phrase, "incapable of managing his affairs," relates solely to the person and estate of the alleged incompetent because the appointment of a guardian to care for these is the whole purpose of the proceeding. In Harrelson v. Flournoy, supra, we said, 78 S.W.2d at page 901: "It is not sufficient that mere unsoundness of mind is found to exist, but it must be such unsoundness of mind as renders one incapable of managing his affairs." The instant information charges that Witmer was insane; that he had sufficient estate to support him at a State Hospital for the insane, and that he was so deranged as to endanger himself and others by being at large. We think this language was broad enough to charge that Witmer possessed an estate and that he was so deranged that he should be confined in an insane asylum, and that the management of his estate should be taken from him. In other words, it meets the requirements of the statute that he was a person of unsound mind and was incapable of managing his affairs.
Witmer was not misled concerning the charge made against him, because the material part of the notice served on him reads: "That information in writing has been filed with the undersigned judge of the probate court, * * * to the effect that you are a person of unsound mind and incapable of managing your affairs, * * * you are entitled to be present at said inquiry and to be assisted by counsel * * *." We do not mean to hold that a deficiency in the information can effectively be supplied by matters contained in the notice. It is merely mentioned to demonstrate that no fraud or unfair advantage was taken of Witmer.
We hold that the information filed herein is sufficient under the statute.
As stated, petitioner's other ground for saying that the probate court acquired no jurisdiction over him is because the complaining witness, Vernon Reynolds, sheriff of Cedar County, also served the notice of the sanity hearing. The basis for this contention is Sec. 58.190, R.S. 1949, V.A.M.S., which provides that when the sheriff, whose duty it is to serve process, is a party or is interested in the suit, the coroner shall serve and execute all writs.
Sec. 458.040 provides that "Whenever any * * * sheriff * * * shall discover any persons, resident of his county, to be of unsound mind, * * * it shall be his duty to make application to the probate court for the exercise of its jurisdiction; * * *."
And under Sec. 458.090 the sheriff, acting officially, is protected against the payment of costs in the event the person alleged to be insane shall be discharged.
Was Mr. Reynolds a party within the meaning of Sec. 58.190 and thus disqualified from serving the notice? There is no claim that he was personally interested in the outcome of the proceeding.
In State ex rel. Terry v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13 at loc. cit. 19, our Supreme Court said: "A lunacy proceeding is a civil, as distinguished from a criminal, proceeding; yet it is a proceeding in personam by the state; the public is interested in the welfare of the person alleged to be insane." Citing State ex rel. v. Guinotte, 257 Mo. 1, 165 S.W. 718, 51 L.R.A., N.S. 1191.
The opinion in the Guinotte case makes this inquiry: "Who are the parties in interest in an inquest de lunatico under our statute? Manifestly (a) the public at large, * * * and (b) the person whose mind is under suspicion * * *." At page 14 of 257 Mo. at page 721 of 165 S.W. the opinion quotes this pertinent language from the case of Hughes v. Jones, 116 N.Y. 67, 5 L.R.A. 632: "Attentive study of the history, nature, and object of lunacy proceedings leads to the conclusion that the petitioner therein is not a party to the record so as to be personally estopped by the finding of the jury, except as all the world is estopped."
Here Mr. Reynolds acted in his official capacity as sheriff pursuant to the directions of Sec. 458.040. Under Sec. 458.090 he was not liable for the costs. Under the ruling in the Guinotte case, he had no right, on his own accord, to dismiss the proceeding. In our opinion, he was not disqualified from serving the notice of inquiry.
The case of State ex rel. Finch v. Duncan, 195 Mo.App. 541, 193 S.W. 950, upon which petitioner relies, is distinguishable from the instant case. In that case, Mr. Finch, the deputy sheriff, was not acting in an official capacity, but as a private individual. Thus, he was liable for the costs. He was definitely interested in the outcome of the proceeding because, if Mrs. Finch were declared to be insane, her suit for divorce against him would have come to an end. No such facts are present in the instant case.
It is ordered that the petitioner be remanded to the custody of Dr. Paul L. Barone, Superintendent of State Hospital No. 3 at Nevada.
DEW, J., not sitting.