
    Hamilton v. Dillon, Supt.
    (No. 6293
    Decided November 17, 1959.)
    
      Mr. Bruce J. Donaldson and Mr. Lewis F. Byers, for petitioner.
    
      Mr. Marh McElroy, attorney general, and Mr. William Vance, for respondent.
   Per Curiam.

The petitioner seeks his release from the Columbus State Hospital by habeas corpus, claiming that he is unlawfully restrained of his liberty at the Columbus State Hospital where he has been since September 18, 1959. The return of the writ indicates that the petitioner is at the Columbus State Hospital by reason of an order of the Probate Court of Franklin County, Ohio, which committed him after finding that the petitioner was mentally ill and a suitable person for care and treatment in the Columbus State Hospital at Columbus, Ohio.

The application for writ of habeas corpus places in issue the question of the jurisdiction of the Probate Court of Franklin County to conduct a hearing on the question of the mental illness of the petitioner under provisions of Section 5123.01, and succeeding sections, of the Revised Code. The affidavit necessary to start the proceeding, as provided in Section 5123.18 of the Revised Code, was filed September 18, 1959, by Emily I. Hamilton who is also known as Mrs. Robert Dow Hamilton, and who is either the wife or divorced wife of the petitioner.

It is alleged by the petitioner that Section 5123.18 of the Revised Code permits only the “next of kin, or a resident of the county in which the person alleged to be mentally ill has a legal residence” to file the affidavit in the Probate Court, and that Emily I. Hamilton was neither a resident of the county nor a next of kin of the petitioner.

In support of the allegation that she was not the next of kin, the petitioner has submitted evidence of a divorce decree obtained in the state of Florida under date of February 1959, and claims that she, as a divorced wife, could not be considered the next of kin under any definition. Petitioner argues further that in obtaining the Florida divorce in February of 1959, Emily I. Hamilton had to show a residence in Florida, and that, final judgment having been entered in the Florida court, the decree or final judgment is not subject to attack here in Ohio in this proceeding, and the court must recognize her legal residence as being in Florida.

Evidence presented at the time of hearing indicated that the petitioner and Emily I. Hamilton had a residence in Franklin County, Ohio, having voted in Ohio in November of 1958; that on the last day of December 1958 they went to Miami, Florida; and that on February 6, 1959, a divorce was obtained in Tallahassee, Florida, and in the divorce petition Emily I. Hamilton gave as her address Route 1, Clearwater, Florida, and indicated that she had resided there since March 1958. At the hearing in the instant case she stated that the answers regarding residence in the divorce petition were not entirely correct and that she never had resided in Clearwater, Florida, but had stayed there two weeks with a brother.

At the time she filed the affidavit in the Probate Court of Franklin County, she stated that she was residing in the home owned by Mr. Hamilton at 260 North Columbia Avenue, Bexley, Ohio.

Section 5123.18 of the Revised Code uses the words, “legal residence,” in referring to the alleged mentally ill person in several paragraphs; and the words, “residence” and “legal residence,” are defined in Section 5123.01 to have the same meaning and legal purport as “legal settlement.” As defined in Section 5113.05 of the Revised Code, legal settlement “is acquired by residing in one county for a period of one year without receiving poor relief or relief from a private agency which maintains records of relief given,” and further, that a “settlement once acquired shall continue until acquired in another county or until a person has been continuously absent from Ohio for a period of one year or has acquired a legal residence in another state.”

The record presented to this court indicates, at best, that when Emily I. Hamilton went to Florida in December 1958, she had no intention of remaining there permanently, and that most of her personal possessions are still in the Columbia Avenue, Bexley, Ohio, home, but indicates that she, at this time, would like to return to Florida and reside and teach school in Miami.

Her testimony, and it was not controverted by the petitioner, indicates that no legal residence was ever established in Florida. It therefore follows that the only legal residence which Mrs. Emily I. Hamilton had was at 260 North Columbia Avenue, Bexley, Ohio; and she was, therefore, the proper person to sign the affidavit required to start the proceeding regarding the mental illness of the petitioner under the provisions of Chapter 5123 of the Revised Code.

Does the finding of the Florida court as to residence bind us and preclude us from deciding whether Emily I. Hamilton was a resident of Franklin County, Ohio, at the time of filing the affidavit required by Section 5123.18 of the Revised Code? In paragraph four of the syllabus of Williams v. North Carolina, 325 U. S., 226, 89 L. Ed., 1577, 65 S. Ct., 1092, 157 A. L. R., 1366, it is stated:

“As to the truth or existence of a fact, like that of domicil, upon which depends the power to exert judicial authority, a state not a party to the exertion of such judicial authority in another state but seriously affected by it has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact.”

If this were an adversary proceeding between the petitioner and Emily I. Hamilton the requirements of full faith and credit would bar her from attacking the divorce decree on judieial grounds since there was some evidence of participation by Emily I. Hamilton in the divorce proceeding. (See Sherrer v. Sherrer, 334 U. S., 343, 92 L. Ed., 1429, 68 S. Ct., 1087, 1 A. L. R. [2d], 1355.)

It should be noted that it is not Emily I. Hamilton who is questioning the establishment of a Florida residence, rather it is the state of Ohio through the Superintendent of the Columbus State Hospital who is attempting to show this court the truth of the matter. Based on evidence presented to us we believe that Emily I. Hamilton was a resident of Franklin County, Ohio, at the time of the filing of the affidavit, and the commitment to the Columbus State Hospital by the Probate Court must be recognized.

Petitioner remanded to custody.

Bryant, P. J., Duffy and Crawford, JJ., concur.

Crawford, J., of the Second Appellate District, sitting by designation in the Tenth Appellate District.  