
    
      Bradford v. Ragsdale et al.
      
    
    
      (Nashville,
    
    December Term, 1938.)
    Opinion filed April 1, 1939.
    
      C. H. Rutherford, of Nashville, for plaintiff in error.
    James ~W. Stokes, of Nashville, for defendants in error.
    
      
      This case reprinted and annotated in 121 A. L. R., 1506.
    
   Mr. Justice MoKiNNey

delivered the opinion of the Court.

Mrs. Sammie Mays Bradford, on inquisition proceedings instituted by her brother, S. L. Mays, under Chapter 17, Public Acts 1919, was, on June 7, 1938, adjudged of unsound mind by the County Court of Davidson County and committed to the Central State Hospital. At the same time the court appointed the American National Bant, of Nashville, guardian of her estate, which exceeds $500' in value and said guardian duly qualified and is now serving in that capacity.

On December 2, 1938, Mrs. Bradford, by ber busband, S. D. Bradford, as next friend, filed ber petition in said county court alleging tbat sbe was sane, and asked tbe court to bave ber competency to liberty and to tbe management of ber property restored. Issue was joined as to ber sanity and tbe case submitted, upon proof, to the county judge, sitting without a jury, who decreed, in part, as follows:

“Tbe Court further bolds tbat under section 9656 of tbe Code tbat this petition is proper, if tbe said Sammie Mays Bradford has been restored to ber sanity since ber commitment.
“But tbe Court finds tbat tbe great preponderance of tbe evidence on this bearing shows tbat petitioner’s mental condition is tbe same as when committed. Among tbe witnesses examined being Dr. Ragsdale, Dr. Love, and Dr. Winters, physicians on tbe Staff of said Hospital, all of whom testified tbat petitioner was still insane and tbat it was to ber best interest tbat sbe continue to be confined in said Hospital, and tbe great preponderance of tbe testimony of tbe lay witnesses introduced on the hearing also shows tbat petitioner is still insane. And tbe Court finds as a fact tbat petitioner is still insane and should continue to be confined.
“It is, therefore, ordered, adjudged and decreed by tbe Court tbat said petition be and tbe same is dismissed.”

From tbe foregoing decree an appeal was prayed, granted, and perfected to tbe circuit court where, upon motion, the appeal was dismissed, tbe court being of tbe opinion tbat tbe appeal should bave been taken to tbe Court of Appeals.

The case is now in this court upon tbe appeal of -the petitioner, her insistence being that tbe circuit court committed error in dismissing ber appeal.

It was tbe theory of tbe trial court that since tbe value of petitioner’s property exceeded $500 tbe chancery and county courts bad concurrent jurisdiction to entertain a petition ashing for restoration, and that tbe appeal should have been taken to tbe Court of Appeals.

Tbe sections of tbe Code bearing upon tbe question of jurisdiction in this character of case are as follows:

9028. “Any party dissatisfied with tbe sentence, judgment, or decree of the county court, may pray an appeal to tbe circuit court of tbe county, unless it is otherwise expressly provided.”

9029. “In all cases in which tbe jurisdiction of tbe county court is concurrent with tbe circuit or chancery courts, or in which both parties consent, tbe appeal bes direct to tbe court of appeals or supreme court, as tbe case may be.”

9613. “Jurisdiction over tbe persons and estates of idiots, lunatics, and other persons of unsound mind, is intrusted to tbe county and chancery courts.”

9622. “Tbe application to tbe chancery court shall be by petition, verified by affidavit, setting forth tbe facts in reg’ard to tbe person and property of tbe supposed idiot or lunatic. ”

9623. “No application shall be made to tbe chancery court, unless tbe estate exceeds five hundred dollars, and tbe fact sbab be so stated in tbe petition.”

9656. “When any person shall be declared a lunatic, or person of unsound mind, as provided by law, and af-terwards become restored in mind, such person may by petition set forth the fact of bis restoration to tbe county judge or chairman of tbe county of which be is a resident, and said judge or county chairman shall hear and determine all such cases brought before him.”

9659. “If the county judge or chairman should be of opinion that the petitioner is of sound mind and competent to control himself and property, the court shall pronounce a decree declaring such person of sound mind, and the guardianship of said person, if any exist, shall terminate; and he may demand settlement of the guardian.”

We hold that the proper practice to have the decree of the county court reviewed in' a restoration case is by appeal rather than by certiorari. It is fully established that a party adjudged to be of unsound mind is entitled to appeal. Harmon v. Harmon, 141 Tenn., 64, 206 S. W., 333; Davis v. Norvell, 87 Tenn., 36, 9 S. W., 193; Fentress v. Fentress, 54 Tenn. (7 Heisk.), 428; Cooper v. Summers, 33 Tenn. (1 Sneed), 453. We think the statute authorizing such an appeal likewise sanctions an appeal in a restoration case.

It is insisted by the defendants that since the chancery and county courts have concurrent jurisdiction in inquisition of lunacy proceedings, where the value of the estate exceeds $500, that they also have concurrent jurisdiction to restore competency; and that in the instant case the petition for restoration could have been filed in either court. But the statute does not so provide, but confers jurisdiction only upon the county court. Chapter 149, Public Acts 1887, likewise conferred jurisdiction in such a proceeding upon the county court.

Mr. Gibson in his Suits in Chancery (2 Ed.), after stating the jurisdiction of and proceedings in that court relative to the persons and property of those who are of unsound mind, concludes section 983 with this statement:

“Should the defendant afterwards become restored in mind, he may, on application by petition to the County Court, have a jury appointed to inquire into the condition of his mind; and if found of sound mind, and competent to control himself and property, the Court will declare him of sound mind; and the guardianship of his person and property thereupon ceases, and he may demand a settlement of his guardian.” Citing Chapter 149, Acts 1887. . ,:

In 32 C. J., page 684, it is said:

“The jurisdiction to determine the question of restoration to sanity is usually governed by the statute. It has been held that a court of equity independent of statute has inherent power to discharge a person committed to an asylum. ’ ’

The paragraph just quoted is supported by the case of State ex rel. Martin v. Superior Court for King County, 101 Wash., 81, 172 P., 257, 4 A. L. R., 572. That case, however, is contrary to the decisions of this court, it having been held as far back as 1849 that the chancery court had no inherent jurisdiction of the person or estate of a lunatic. Lewis v. Moody, 149 Tenn., 687, 261 S. W., 673; Oakley v. Long, 29 Tenn. (10 Humph.), 254.

As to whether, under the statute, there is an implied power conferred upon the chancery court to restore sanity where the original inquisition proceeding was had in that court we find it unnecessary to decide in this case. What we do hold is that since the petitioner was adjudged of unsound mind and a guardian was appointed to manage her estate by the County Court of Davidson County that the petition for restoration was properly filed in that court, and that the chancery court would -have had no jurisdiction to determine the controversy.

With respect to a proceeding to restore sanity, we quote from 3:2 C. J., page 673, as follows: “the application should he made to the court which exercised the original jurisdiction.” And again, on page 674, it is said: “An application for restoration to sanity is not a new proceeding; it is a continuation of the original guardianship proceeding.” As stated by the Supreme Court of Alabama in Pope v. Bolin, 224 Ala., 322, 140 So., 382, 384: “As related to the guardianship the proceeding to revoke may be considered a part of and in the nature of a continuance of the original proceeding.”

We conclude, therefore, that the chancery and county courts did not have concurrent jurisdiction to restore petitioner, but that such jurisdiction was vested exclusively in the county court. That being true, the appeal should have been to the circuit court rather than to the Court of Appeals.

It follows that the judgment of the circuit court will be reversed and the case remanded to that court for a hearing upon the merits. The costs of the appeal will be paid by the guardian. Other costs will be adjudged upon the final hearing..  