Opinion
No. 26652
Decided February 9, 1938.
Probate Court — Insane patient committed to state hospital — Continuing exclusive jurisdiction not retained.
After a Probate Court has committed a patient to the state hospital for the insane, that court retains no continuing exclusive jurisdiction over the person of the patient.
IN PROHIBITION.
This is an original action in which the relator asks this court to issue a writ of prohibition to prevent the respondents from assuming jurisdiction over the person or the estate of the relator's alleged ward, Lucy Ann Hevlow, insane.
The case is presented upon the petition, joint answer, reply and agreed statement of facts. This statement reads as follows:
"The following facts are stipulated and agreed upon between counsel for relator and counsel for defendants, and are the pertinent facts in relation to the matters at issue before this court.
"1. On or about April 1, 1934, Lucy Ann Hevlow and William A. Hevlow went to Franklin county, Ohio, where they stayed with Bessie Davis, their daughter. Prior to that time they had resided in Tuscarawas county for a period of about fifteen years. Thereafter, in Case No. 72,403 of the Probate Court of Franklin county, Ohio, the Honorable Cloys P. McClelland found on the twelfth day of September, 1934, that Lucy Ann Hevlow had a legal settlement in Montgomery township, Franklin county, Ohio. This action was an inquest of lunacy and the said Lucy Ann Hevlow was found on that day to be an insane person and was committed to the Columbus State Hospital. The said action was never dismissed nor was the said Lucy Ann Hevlow given a release or dismissal from the above action nor from the Columbus State Hospital. (Certified copies of the records in the above case are attached hereto and made a part hereof.) The said Lucy Ann Hevlow was allowed out of the Columbus State Hospital by the superintendent under authority of Section 1968 of the General Code, on a trial visit in the custody of her daughter, Bessie Davis, a resident of Franklin county, on November 17, 1934, and several weeks thereafter Bessie Davis permitted Lucy Ann Hevlow to go with her husband, William A. Hevlow, to Tuscarawas county, at which place she lived with him until his death, February 17, 1937; that upon the death of William A. Hevlow, Bessie Davis took physical possession of Lucy Ann Hevlow and on March 19, 1937, returned her to the State Hospital where she continued to stay until the superintendent of the Columbus State Hospital, Dr. Bateman, permitted Laurence R. Connor, guardian of the said Lucy Ann Hevlow, to take her out on a trial visit; that the said Laurence R. Connor permitted her to be in the Otterbein Home at Lebanon, Ohio, from which he removed her on the 11th day of July, 1937, and returned her to the Columbus State Hospital when again Dr. Bateman permitted the custody and care of the said Lucy Ann Hevlow to remain in the said Laurence R. Connor, under whose care and supervision she now is.
"2. On February 20, 1937, an action was brought in the Probate Court of Tuscarawas county for the appointment of a guardian of the estate and person of the said Lucy Ann Hevlow; that personal service was made on Lucy Ann Hevlow and Bessie Davis on the twentieth day of February, 1937, both parties being in Tuscarawas county at the time. On the twenty-fifth day of February, 1937, said case came on to be heard and counsel appeared in Tuscarawas county Probate Court, for and on behalf of Laurence R. Connor and objected to the jurisdiction of the Probate Court of Tuscarawas county because of his prior appointment in Franklin county on February 24, 1937. The court thereupon made a finding that said Lucy Ann Hevlow was incompetent by reason of mental disability and continued the question of appointing a guardian in order to have the Probate Court of Franklin county certify its records. Thereafter, on May 14, 1937, by order of the defendant, J.H. Lamneck, Judge of the Probate Court of Tuscarawas county, the defendant, Carl J. Keplinger, was appointed guardian of the person and estate of Lucy Ann Hevlow and is now attempting to take possession of the person and estate of the said Lucy Ann Hevlow under and by virtue of the said appointment. No appeal or error proceedings were perfected from the appointment of Carl J. Keplinger as guardian in the Probate Court of Tuscarawas county.
"3. On February 24, 1937, Lucille Davis, a granddaughter of the said Lucy Ann Hevlow, filed an application for the appointment of a guardian for the person and estate of Lucy Ann Hevlow in the Probate Court of Franklin county, Ohio, on the ground of physical disability and on the same day the Probate Court of Franklin county appointed Laurence R. Connor as guardian of the said Lucy Ann Hevlow. Said appointment was obtained with the consent of Lucy Ann Hevlow and by waiver of summons on the part of Bessie Davis, but was dismissed when on the twenty-fifth day of May, 1937, an action was brought in the Probate Court of Franklin county for the appointment of a guardian over the person and estate of the said Lucy Ann Hevlow, an insane person, and the said Lucy Ann Hevlow was served personally as well as her custodian, Dr. Bateman, superintendent of the Columbus State Hospital. On the twenty-fifth day of May, 1937, Bessie Davis, her daughter, waived the service of summons upon her; that on June 1, 1937, the plaintiff was appointed guardian of the person and estate of Lucy Ann Hevlow and he is now attempting to take possession of said Lucy Ann Hevlow and her estate. On June 17, 1937, Carl J. Keplinger filed a motion in the Probate Court of Franklin county, Ohio, to vacate and set aside the appointment of Laurence R. Connor, as guardian, and the said court, on July 1, 1937, overruled the motion as to the appointment made on June 1, 1937.
"4. Lucy Ann Hevlow was the wife of William A. Hevlow who died in New Philadelphia, Ohio, on February 17, 1937, and whose estate was exempt from administration by the Probate Court of Tuscarawas county.
"5. That both Lucy Ann Hevlow and William A. Hevlow applied for aid to the Board for Aid for Aged of Tuscarawas county, Ohio, and received such aid.
"6. The Probate Court of Franklin county, Ohio, has assumed jurisdiction of the person and estate of the said Lucy Ann Hevlow and the Probate Court of Tuscarawas county, Ohio, has assumed jurisdiction of the person and estate of the said Lucy Ann Hevlow; that no proceedings or exceptions except as hereinbefore referred to were filed to the appointment in the Probate Court of Tusearawas county and the only proceedings filed in the Probate Court of Franklin county as hereinbefore referred to as [sic] a motion filed by Carl J. Keplinger, which motion was overruled and no appeal or error proceedings brought thereon.
Messrs. Pealer Tuttle, for relator.
Mr. Robert S. Hatch, for respondents.
For his remedy in this controversy the relator relies upon the case of State, ex rel. Taylor, Admr., v. Gregory, Judge, 122 Ohio St. 512, 172 N.E. 365, on the theory that the Probate Court of Tuscarawas county is wholly devoid of jurisdiction of either the person or the estate of his ward.
The question of law now before this court for determination is whether the action of the Probate Court of Franklin county in the lunacy inquest of 1934: was of such a nature as to render its jurisdiction continuous and exclusive in this matter, thereby precluding the attempted guardianship proceeding in Tuscarawas county nearly three years later. The relator relies upon the first paragraph of the syllabus in the case of Heckman v. Adams, 50 Ohio St. 305, 34 N.E. 155, which holds that "The jurisdiction acquired by the Probate Court in an inquisition of lunacy, under our statutes, continues until the discharge of the patient." However, as the respondents correctly observe, this decision is no longer controlling inasmuch as it was based in part upon Section 6302, Revised Statutes, which related to the appointment of a guardian by the Probate Court. This section was repealed subsequently and was replaced by Sections 10988 and 10989, General Code. These sections now have been repealed and in turn replaced by Sections 10507-1, 10507-2 and 10507-4, General Code. By the terms of Section 6302, Revised Statutes, and Section 10989, General Code, the Probate Court was authorized to make such an appointment for a "person resident of the county, or having legal settlement in any township thereof." This language has been supplemented and broadened by Section 10507-2, General Code, to provide that "the person for whom the guardian is to be appointed be a resident of the county, or has a legal settlement or residence therein." In the present controversy the Probate Court of Tuscarawas county proceeded under favor of this provision, inasmuch as Lucy Ann Hevlow returned to that county shortly after November 17, 1934, and resided there until after that action was instituted on February 20, 1937. Then too, the respondents rely upon the following broad and decisive language of Section 1950-1, General Code.
"Any insane person having a legal residence in the state of Ohio, but who may be temporarily residing or detained in a county other than that of his legal residence, may be legally committed to a state hospital by the Probate Judge of the county in which such person is temporarily residing or detained."
In the case of Heckman v. Adams, supra, the court relied also upon Sections 709, 710 and 714, Revised Statutes, relating to state hospitals for the insane. These sections likewise were repealed and replaced by Sections 1964 to 1971 inclusive, and 1977, General Code, part of which remained in effect until January 1, 1938. A careful study of these provisions discloses nothing to indicate a legislative intent to clothe a committing Probate Court with continuing exclusive jurisdiction over the person of the patient. On the contrary, the superintendent of the hospital may at any time discharge a patient with the written consent of the Director of the Department of Public Welfare; and as was done in the instant case, the superintendent has plenary power to permit a patient to leave the hospital on a trial visit of whatever duration the superintendent may deem proper. At any time during such visit the superintendent may have the patient return to the hospital without further legal proceedings. Thus the Probate Court of Franklin county did not have continuing exclusive jurisdiction over the person of Lucy Ann Hevlow, and the Probate Court of Tuscarawas county was authorized to take the guardianship action of which the relator complains. The writ must be denied and the action dismissed at the relator's costs.
Writ denied.
MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and GORMAN, JJ., concur.