State Ex Rel. Bevan v. Williams

*669 RAGLAND, J. This is an appeal from a judgment of the Circuit Court of Macon County, in a proceeding in certiorari, quashing the records and proceedings of the probate court of that- county, wherein the relator, William J. Bevan, was adjudged to be a person of unsound mind and incapable of managing his affairs.. The purported adjudication occurred on March 1, 1921, and the appointment of a guardian of relator’s person and estate- on March 2nd. Following the adjudication of insanity and the appointment of a guardian, relator was taken to the State Hospital for the Insane at St. Joseph, where he was confined until March 19, 1923. On that date he was placed under the care of Dr. M. A. Bliss of St. Louis, a specialist in nervous and mental diseases; on April 19, 1923, Dr. Bliss filed in the probate court “an allegation in writing, verified by oath,” that relator had been restored to his right mind; and on the day following, April 20th, the court held an inquiry as to relator’s sanity and duly found and adjudged that he had been restored. Following the relator’s discharge, the guardian, on May 1, 1923, filed in the probate court a final settlement of his accounts as such. According to the inventory and appraisement filed by the guardian, the value of the relator’s estate at the time he took charge of it was approximately $35,000. The paper filed by him as and for his final settlement disclosed that $7,487.48 is all that now remains of the estate. Relator, contending that the appointment of the guardian was void, on the ground that the probate court was without jurisdiction, evidently instituted this proceeding in order that it might be determined whether in his endeavor to recover his property lie was bound to deal with the alleged guardian as guardian, or whether he might proceed against him as a meddler, a trespasser. The contention that the probate court was without jurisdiction to appoint a guardian is based on these grounds: (1) The information by which the inquiry into relator’s sanity was initiated was insufficient; (2) relator was not notified of the proceeding in accordance with statutory requirements; and (3) no judgment was rendered by the probate court, adjudging relator to be a person of unsound mind and incapable of managing liis affairs. I. The information alleged, among other things, “that the said William James Bevan is suffering . . . with a disease or mania . . . , and that his condition ... is such that he is incapable, on account of said mental disability, to manage and take care of and preserve his person and estate . . . ” It is said that the information was fatally defective because it did not allege that Bevan was (1) a “person of unsound mind,” and (2) “incapable of managing his affairs.” It is true that these are juris *670 dictional facts, and unless alleged in the information the entire proceeding was void. [Sec. 444, R. S. 1919.] But it was not necessary that their existence be averred in the precise words of the statute. In charging a statutory crime in an indictment the language of the statute need not be followed; language of equivalent import will suffice. To say that one is suffering from a disease or mania, and that his condition, on account of said mental disability, is such that he is “incapable to manage and take care of and preserve his person and estate,” is to say that he is of unsound mind and incapable of managing his affairs. The information did not charge in the alternative that Bevan was suffering from either disease, or mania. “Disease” and “mania” were used as coordinate terms in describing his affliction. That infliction was an infliction of the mind. Mania in its usual and ordinary sense means/: derangement of the mind; madness; insanity. And the information further averred that on account of “said mental disability” Bevan was incapable, etc. “Affairs,” 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. The information sufficiently averred that the relator was a person of unsound mind and incapable of managing his affairs. II. The information above referred to -was filed on February 14, 1921. Thereafter, and on the same day, the probate court issued a written order, signed by the judge under the seal of the court, directed by the Sheriff of Macon County, -which after reciting the filing of the information commanded the Sheriff “to take the gaj(j William James Bevan and him safely keep until the. probate court of said county shall convene to inquire into the sanity of said William James Bevan.” On the same day the sheriff made return of the order as follows: “Served the within summons in the City of Macon, etc., on this 14th day of February, 1921, by delivering a copy of the within petition to the within named defendant, James Bevan.” The record of the probate court of the same date incites: “Now on this day the court has filed the complaint of E. H. Bevan and Joe Bevan, and the court takes up said complaint and orders Sheriff to bring in one William James Bevan, purporting, as set out under petition, of being of unsound mind. By agreement of both plaintiff and defendant’s attorneys, the defendant was turned over to Shelton and Shelton to care for and look after one James Bevan until both plaintiff and defendant’s attorneys can agree on a day- with the court for hearing, and said defendant’s attorneys to look after and care for said defendant until a day can be agreed *671 upon and cause of action heard. On said agreement court continued said matter until time for hearing.” On February 17, 1921, a writ was issued and placed in the hands of the Sheriff, which, omitting the formal parts, was as follows: “Whereas, the following transcript herewith attached and copy cf complaint filed in this court on the 14th day of February, 1921, the accusation and complaint being that one said William James Bevan is a person of unsound mind, and whereas by agreement of both plaintiff’s and defendant’s attorneys, that one said William Jámes Bevan was turned over to Shelton and Shelton in jurisdiction of this court, has absented himself from the jurisdiction of this, the Probate Court of Macon County, Missouri, and fears being entertained by this court, and other interested parties that harm may come to him or others, I hereby command you, the Sheriff of Macon County to forthwith convey and deliver one William James Bevan in the Probate Court of said Macon County, Missouri, as soon as convenient and possible for you to recover one William James Bevan. ’ ’ On this writ the Sheriff made return February 25, 1921, as follows: “In conformity with the within writ the undersigned left Macon on February 17, 1921, and went to Bucklin, Mo., to apprehend the within named William James Bevan, being unable to find him there, proceeded to Brookfield, Mo., and after diligent search was unable to find him and later learned that the said Bevan was in the Schuyler County. . . . On February 23rd said Bevan surrendered himself and was placed in the county jail and required a guard during the entire night.” The record entry of the probate court relating to the hearing, on March 1, 1921, is as follows: “E. H. Bevan and Joe Bevan, Plaintiff, v. William James Bevan, Defendant. “Now on this day comes on for hearing an insanity inquiry of said William James Bevan, filed in the court the 14th day of February, 1921, and continued until Tuesday, March 1, 1921, and now on this day, both plaintiff and defendant through their attorneys, answer ready for trial. [Here follow recitals relating to the empaneling of the jury.] “The following witnesses were introduced on behalf of the plaintiff: Will Banta, Sheriff, Chas. Oxley, night watchman, William Stanfield, Chief of Police, Tom Holman, Deputy Sheriff, Stewart Humphrey, Hotel Clerk, and the following expert witnesses were introduced on behalf of said plaintiff; Dr. Cerdine of Still-Hildreth Sanatorium; and Dr. Hoyle, also of the Still-Hildreth Sanatorium, and the following physicians/: Dr. C. C. West of New Cambria, Dr. W, E, Bradley of Ethel and Dr. A. M. Baines of Macon, Missouri, *672 and the following witnesses: O. L. Poison, banker of Ethel, H. C. Young, undertaker of Ethel; Joe Bevan, brother of defendant; E. II. Bevan, also brother of defendant. “The court further finds that the said W. J. Bevan is violent, and on account of said condition, and on recommendation of defendant’s physicians, his presence is dispensed with, Shelton and Shelton and George N. Davis, his attorneys, appearing in his behalf, and there being no witnesses introduced by defendant’s counsel, forms of verdicts were submitted to the jury as follows on behalf of the plaintiff: . . . and on behalf of the defendant . . . [Forms omitted.] The verdict submitted on behalf of plaintiff was unanimous and signed by R. L. Wright, foreman, and submitted to court and court, confirms said judgment of the jury and the finding is in words as follows: “In re Estate and Person, William James Bevan, continued. “ ‘We, the jury, find that W. J. Bevan is of unsound mind and incapable of managing his affairs. “ ‘R. L. Weight, Foreman.’ “The court appoints E. H. Bevan as guardian and curator and orders him to give bond double the amount of the property and on filing and approving said bond, and the completion of stipulations filed, also a waiver of wife of said William James Bevan.” With reference to the question of relator’s notice of the proceeding, the records just quoted from expressly or impliedly disclose the following: The sheriff, in the execution of the order to take relator into his custody and keep him until the court convened to inquire into his sanity, merely delivered to relator a copy of the information which had been filed, charging relator with being a person of unsound mind and praying the appointment of a guardian for him. Upon the receipt of the. copy relator immediately consulted with Shelton & Shelton, attorneys at law, and employed them to represent him in the matter. Shelton & Shelton thereupon, on the same day — February 14, 1921 — appeared for him in the probate court and there entered into an arrangement with counsel for the informants, and the court, whereby relator was to be placed in the custody of his attorneys, instead of that of the sheriff, until a day for the hearing could be agreed upon by the parties and the court. The presumption is that relator appeared in court with his attorneys, because the record recites: “the defendant was turned over to Shelton and Shelton.” But whether he was present in person is not material^ Shortly after relator was given into the custody of his counsel he disappeared, and an unavailing search was made for him. At the end of approximately a week he returned to Macon City and sur *673 rendered himself to the sheriff who pnt him in jail. Presently he' became violent, and a special guard had to be put over him. When on March 1st, the date fixed for the hearing, came on, he was still so violent that the court deemed it best to proceed without his presence. But his attorneys were there in his behalf; they announced ready for trial and participated in the proceeding. The statute with respect to'notice in such cases is as follows: “In proceedings under this article, the alleged insane person must be notified of the proceeding by written notice stating the nature of the proceeding, time and place when such proceeding will be heard by the court, and that such person is entitled to be present at said hearing and to be assisted by counsel, such notice to be signed by the judge or clerk of the court under the seal of such court, and served in person on the alleged insane person a reasonable time before the date set for such hearing. If no licensed attorney appears for the alleged insane person at such hearing, then the court shall appoint an attorney to represent such person in such proceeding. . . [Sec. 446, R. S. 1919.] It is plain that relator was never served with a notice which conformed to the provisions of the statute just quoted. Notwithstanding, he appeared generally to the proceeding by his counsel. The naked question therefore is whether such an appearance operated as a waiver of the statutory notice. In some jurisdictions it is held that an alleged incompetent person cannot waive notice either by appearance in person or by attorney, on the ground that he is incapable of doing so by reason of his alleged ineompetency. [McGee v. Hayes, 127 Cal. 336; Morton v. Sims, 64 Ga. 298.] In others it is held that there may be a waiver by appearance, in person or by attorney. [Martin v. Motsinger, 130 Ind. 555; Stewart v. Taylor, 111 Ky. 247.] The general rule is that all persons sui juris may enter an appearance, either in person or by attorney, and thereby confer jurisdiction over their person upon the court. The filing of an information alleging that an individual is of unsound mind does not render him non sui juris; it raises no presumption of incompetency. The statute in its requirements as to what shall be stated in the notice to the alleged insane person assumes that he is competent to make a defense and to employ counsel for that purpose. The holdings in the jurisdictions first referred to seem illogical, because the presumption of sanity continues for all purposes until overthrown by an adjudication to the contrary. In Crow v. Meyersieck, 88 Mo. 411, it was held that objections to a defective or void notice of such a proceeding as the one under review were waived by the general appearance thereto of the alleged insane person; and that holding has not been overruled or criticized by any subsequent decision of this court. In this case there is no sus'ges *674 tion in the record, or out of it, that relator did not in fact appear to the proceeding in which he was adjudged to be of unsound mind,, by counsel of his own selection; or that his counsel'were not given ample time and opportunity to prepare and present any defense they thought proper or available. By such appearance he waived service of the statutory notice. And it might be added that, sq far as the failure to give him formal notice is concerned, he was not thereby deprived of a single right vouchsafed him by either statute or constitution. III. No formal judgment was entered by the probate court in the proceeding under review, but the record recites.: “and the court confirms such judgment of the jury and the finding.is in words. as follows: ‘We, the jury, find that W. J. Bevan is of . unsound mind and incapable of managing his affairs. ’ ’ ’ This was to all intents and purposes an adjudication by the court. In any event it was sufficient to authorize the. appointment of a guardian. The statute provides: “ If it be found by the jury or the court sitting as a jury that the subject of the inquiry is of unsound mind and incapable of- managing his or her affairs, the court shall appoint a guardian of the person and estate of such insane person. . . .” [Sec. 448, R. S. 1919.] In addition to the rec.ords which have been reviewed the relator points out others which show, as he contends, that the probate court in many matters pertaining to the administration of his estate exceeded its jurisdiction. For the correction of such excesses or abuses other remedies are more adequate than a proceeding of- this character. In some of the matters complained of the rights of third parties have intervened; in any action affecting the interests of such persons they should be made parties in order that they may be concluded thereby. In view of the conclusions reached the judgment of the circuit court must be reversed. It is so ordered. All concur, except Graves, J., absent, and Blair, C. J., who dissents.