Laughinghouse v. Laughinghouse

STONE, J. There is one fundamental feindr in’thfe proceedings to have Joseph Laughinghouse declared a lunatic, which must work the reversal of this case. The writ to the sheriff directed him, not only to summon a jury, but to organize and qualify it, and to take the inquisition. We gather from the record that the trial was had before the sheriff, in the absence of the judge of probate. This was [258] wrong. Our statutes, conferring this statutory and summary remedy, evidently contemplate a trial before the judge of probate. He must preside at the trial, administer the oath to the jury, and receive their verdict when rendered. In this, as in other trials, the sheriff is only the ministerial officer of the law. — Code, 2750-1-2-3, d seq. There is nothing in these sections of the Code which in terms requires the trial to be had before the probate judge; but such is plainly inferrible from their phraseology in several places. Section 2763 declares what compensation shall be allowed to the jurors and witnesses, to be paid ora the certificate of the judge of probate. It would be strange to require him to certify that certain services were rendered, on a trial with which he had nothing to do. The act of 1821, (Clay’s Digest, p. 302, § 30,) while it evidently permitted such trials to be had before the sheriff, directed that, “on sufficient cause shown, the judge may order any such inquisition to be had before him.” Under that statute the inquisition was held which was brought, to view in the case of McCurry v. Hooper, 12 Ala. 823. The Code evidently intended to change that rule, and to require such trials, in all cases, to be had before the judge of probate. It follows from what we have said, that the whole proceedings had in this cause, after the petition was filed, and the appointment of a guardian for Mjr. Laughinghouse, were coram non judice and void ; and the appointment should have been revoked. The other questions presented will not probably arise again, as, on another trial, the court can conform to the statute, as to length of notice, oath of jurors, presence of the alleged lunatic, &c. We deem it unnecessary to express any opinion on those questions. The judgment of the probate court of Madison, in refusing to revoke the appointment of John E. Laughinghouse as guardian, is reversed, and the cause remanded.