Craft v. Simon

COLEMAN, J. Jetta Simon, the appellee, sued in ejectment to recover a certain lot of land. The facts were substantially agreed upon, and upon the evidence, the court instructed the jury to find for the plaintiff. The conclusion of the court from the evidence is questioned by the assignments of error. The land sued for, at one time belonged to the plaintiff; and .the issue involved was whether the defendant had acquired her title. Upon proceedings instituted in the probate court of Mobile county, Jetta Simon had been declared to be of unsound mind, and one Ealph G. Eichards was appointed her guardian. It was upon his petition as guardian that the land was sold under and by virtue of a decree of the probate court. The defendant Craft became the purchaser, paid the purchase money, the sale was confirmed and a deed duly executed to him. The regularity of the petition for the sale of. the land, the proof in support of it, the confirmation and the. execution of the deed to the purchaser, are not questioned. The real question is, whether Jetta Simon was legally .declared to be of unsound mind. This being established, the remainder of the proceedings, including the acquisition of title by the defendant, cannot be assailed. The sufficiency of the petition to institute an inquiry into' the soundness of mind of Jetta Simon was not questioned in the court below, nor has it been questioned in the argument of counsel on this appeal. It is contended that the authority of the court to appoint a guardian being dependent upon the fact that Jetta Simon was legally declared to be of unsound mind, unless the record furnishes the evidence for the exercise of the authority, the appointment itself must fall; and if there was no legally appointed guardian, then there [635] could be no valid sale upon his petition. — Eslava v. Lepretre, 21 Ala. 504; Moody v. Bibb, 50 Ala. 245; Walton v. Henderson, 62 Ala. 426. This is the argument of appellee. Conceding the proposition to be sound, the question for consideration, as we have stated it, is whether Jetta Simon was legally and properly found and declared to be of unsound mind, so as to authorize the appointment of a guardian. It is said that the court had no jurisdiction to make the appointment: First, because no jury, constituted as required by law to make inquisition of lunacy, was ever drawn, summoned or impannelled. Second, because no opportunity was afforded to appellee to be heard at the inquisition. Third, because no verdict was rendered in the proceedings1 to declare her a lunatic, ascertaining the jurisdictional facts, or justifying the appointment of a guardian. Section 787 of the Code of 1886 (Code of 1896, §3363) is as follows: “Jurisdiction of courts of probate. Courts of probate have, in the cases defined by law, original jurisdiction of, * * * * “Subdiv. 6. The appointment and removal of guardians for minors and persons of unsound mind.” The fact that the Constitution granted the General Assembly power to establish courts of probate, with general jurisdiction for the grant of letters testamentary, etc., furnishes no argument that the General Assembly is denied the power to invest probate courts with original jurisdiction in the matter of persons of unsound mind. — State ex rel. Winter v. Sayre, ante p. 1. The jurisdiction to appoint guardians for persons of unsound mind is as extensive as in the case of probate of wills, the granting of letters testamentary, sales of property of intestates, allotment of dower, and partition of .lands, all of which are enumerated, with other subject-matters of jurisdiction, under said section 787. Said section 787 and sections 2390, 2391, 2392, of Code of 1886 (Code of 1896, §§3363, and 2255, 2256, 2257) declare that the probate court has authority, and it is the duty of the court, to appoint guardians for persons of unsound minds, and although the statute provides that a guardian shall not be appointed, “until an inquisition has been had and taken as hereinafter directed,” the proceedings are nevertheless before the probate court as a [636] court, and the issues are determinable in that court. The jurisdiction attaches both as to the subject matter and the person upon the filing of a proper petition, and the issuance and sendee of notice upon the party to be affected, in the manner prescribed by the statute. The petition is in strict accordance with section 2392 of Code of 1886 (Code of 1896, §2257), which prescribes the allegations that the petition shall contain in the inquisition proceedings. As to the first ground of objection that no jury was summoned as provided by law: Section 2393 of the Code of 1886 (Code of 1896, §2258) provides that the jury must consist of “twelve disinterested persons of the neighborhood” of the alleged unsound person. If there Avas a special statutory tribunal, of which the jury constituted a part, to determine the issues, as Ave understand counsel for appellee to insist, there would be some force in the argument. But if the issue is to be tried before the probate court, as Ave have determined, then the statute of 1882-83, pp. 501, 509, must control. This statute provides Iioav the jury shall be draAvn, whenever an issue is to be tried by a jury in the probate court of Mobile county. The jury seems to have been draAvn in accordance with the statute. We are of opinion the objection is not Avell taken. The second ground of objection is, that the appellee had no opportunity to be heard at the inquisition. This objection is based upon the character and Avording of the writ directed to the sheriff. The provision of the statute is, that the judge must “issue a writ directed to the sheriff to take the person alleged to be of unsound mind, and, if consistent AA-ith his health or safety, have him present at the place of trial.” The writ that issued, after setting out the facts averred in the petition, proceeded: “Noav, therefore, if it be consistent with the health and safety of said Jetta Simon, you are hereby required to take her body so that you may have her in said court,” etc. The statute is that the sheriff be directed to take her body, and if consistent with health, etc. By the statute it is made' the duty of the sheriff to take the body, Avithout condition, and if consistent with health and safety to have her present at the trial. The Avrit issued directed the sheriff, “if consistent with health and safety to take her body,” etc. The return [637] of the sheriff: shows that the writ was executed in accordance with the statute. It is: “I executed the within writ of arrest by taking into my custody the within named Jetta Simon, and handing her a copy of said writ, and, as it is inconsistent with t'he health or safety * * * to have her at the place of trial, * * * she is not brought before the court.” Technically the writ of the judge was not accurately correct. Its meaning, however, is evident. The sheriff’s return ivas complete and regular in every respect. We do not doubt she was brought into court in the manner prescribed by statute, and that she was subject to its jurisdiction. The second objection cannot be sustained. The third objection finds some support in the phraseology of the statutes, and has been forcibly and ingeniously presented. After a careful consideration of the statutes enacted from 1866 to the adoption of the provisions of the Code of 1886, defining and regulating inquisitions of lunacy, and appointment of guardians for persons of unsound mind, we are led to the conclusion that the purpose and intention of the legislature by the adoption of the Code statutes was to declare the whole law upon the subject, and thereby repeal all former statutes in relation thereto. Applying the same rules of construction to the statutes which confer jurisdiction upon the probate courts in the matter of the appointment of guardians for persons of unsound mind as are applied to like statutes, which confer jurisdiction in matters of partition of lands, etc., Ave hold that upon the filing of a proper petition, and the sendee of summons and notice in the manner prescribed, the jurisdiction of the court attaches, and its conclusions are not void on collateral attack. Jurisdiction having attached, the failure of the decree to ascertain that the jurisdictional facts had been proven, Avould not affect the validity of the decree. Pollard v. Amer. &c. Mortgage Co., 103 Ala. 289, and authorities cited. Errors and irregularities must be corrected by direct appeal or writ of certiorari. Any other view would greatly embarrass guardians appointed by the court in such cases, and deter purchasers at sales, though ordered by the court, and would not be reconcilable with well settled principles applying in cases in which there does not seem to be any valid reasons for a distinction. — Fore v. Fore, 44 Ala. 478; Campbell v. Campbell, 39 Ala. 312; Pollard v. Am. F. L. M. Co., 103 [638] Ala. 289; Kling v. Connell, 105 Ala. 590; Landford v. Dunklin, 71 Ala. 603. The jury by their verdict found “Mrs. Jetta Simon to be of unsound mind.” The statute requires the court to appoint guardians for persons of “unsound mind.” The finding of the jury was sufficient, at least on collateral attack, to authorize the appointment. The court erred in giving the affirmative charge requested by the plaintiff. There was no provision in the statute which conferred jurisdiction upon chancellors to remove the disabilities of coverture, prescribing the constituents of a petition for such relief. Had there been, the sufficiency of a petition which complied with such requirements, would not have been questioned. The petition in the present case strictly complied with the statute. — Code, §2392, supra. Moreover, the statute conferring jurisdiction upon the probate court to make inquisition in such' cases, is broader in terms than the statute which conferred jurisdiction upon chancellors to grant relief from the disabilities of coverture. Reversed and remanded.