
    In re Clendenning : Clendenning, Appellee, v. McCall, Gdn., Appellant.
    (No. 30092
    Decided April 11, 1945.)
    
      
      Mr. Adolph Unger, for appellee.
    
      Messrs. Lynch, Lay, Lynch, Cope & Ketterer and Mr. C. U. Wright, for appellant.
   Turner, J.

Where a Probate Court made a valid appointment of a guardian of the person and estate of an incompetent person, may a Court of Common Pleas grant such ward a writ of habeas corpus upon finding that such ward is no longer an incompetent person?

The trial court in its opinion acknowledged the exclusive jurisdiction of the Probate Court over the guardian but in its journal entry found and ordered “that Maude Clendenning is no longer an incompetent person by reason of mental disability and that she is now mentally competent to take care of her person and her property and that the cause for a guardian over her person and property does not now exist, nor for any further unlawful restraint upon her liberty.

“It is further ordered and adjudged that the writ will therefore be sustained and the said Maude Clendenning is discharged from any illegal restraint at the hands of the guardian.”

This squarely presents a question of conflict of jurisdiction between the Court of Common Pleas and the Court of Probate. To hold otherwise would be the result of failure to recognize the realities.

Under Section 4 of Article IV of the Constitution, Courts of Common Pleas have only such jurisdiction as may be conferred by law.

In the case of Stevens v. State, 3 Ohio St., 453, Judge Ranney said at page 455: ‘ ‘ The constitution itself confers no jurisdiction whatever upon that court [Common Pleas], either in civil or criminal cases. It is given a capacity to receive jurisdiction in all such cases, but it can exercise none, until ‘fixed by law.’ ”

Except upon appeal (e. g., Section 10501-56, General Code), Courts of Common Pleas have no jurisdiction over either the appointment or removal of guardians or their relation to or control over either the person or property of the ward.

Section 8 of Article IV of the Constitution provides in part:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians * * * J j

Section 10507-2, General Code, provides:

“When found necessary, the Probate Court of any county on its own motion or on application by any interested party, shall appoint a guardian of the person, or of the estate, or of both, of * * * incompetent (except that if the incompetency be due to physical disability or infirmity the consent of the incompetent must first be obtained), * * * provided the person for whom the guardian is to be appointed be a resident of the county, or has a legal settlement or residence therein. * * .

Section 10501-53, General Code, gives exclusive jurisdiction to the Probate Court “to appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts * #

Section 10507-61, General Code, provides:

“Upon reasonable notice to the guardian, and to the person or persons on whose application the appointment was made, and satisfactory proof that the necessity for the guardianship no longer exists, or that the letters of appointment were improperly issued, the Probate Court shall order that the guardianship of an incompetent * * * terminate, and shall make an appropriate entry upon the journal. Thereupon the guardianship shall cease, the accounts of the guardian be settled by the court, and the ward be restored to the full control of his property as before the appointment. * * *”

We are of the opinion that this section provides the exclusive and adequate method whereby a guardianship may be terminated and control of a ward’s property restored. Where the petitioner has an adequate remedy at law, a writ of habeas corpus will be denied. Ex parte Justes, 121 Ohio St., 628, 172 N. E., 307; 20 Ohio Jurisprudence, 490, Section 66. What was said by Chief Justice Weygandt in Unger v. Wolfe, 134 Ohio St., 69, 74, 15 N. E. (2d), 955, re the precedence of a later special statute over an older, general statute, applies here.

In the case of Shroyer, Gdn., v. Richmond, 16 Ohio St., 455, this court held:

“4. Plenary and exclusive original jurisdiction is' given by law to the Probate Courts of this state, in the matter of the appointment of guardians, and that jurisdiction attaches in any given case, whenever application is duly made for its exercise therein.

“5. Such proceedings are not inter partes, or adversary in their character. They are, properly, proceedings in rem; and the order of appointment, made in the exercise of jurisdiction, binds all the world. The actual presence of the ward is not essential to the jurisdiction; unless, by reason of his right to choose a guardian, or for other cause* the statute so require.

“6. The Probate Courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are c'onjpetent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence'on which it is rendered.

“7. Hence, an order appointing a guardian, made by a Probate Court, in the exercise of jurisdiction, cannot be, collaterally, impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.”

We approve the foregoing quotation from the syllabus of the Shroyer case as applicable in the instant case.

The Court of Common Pleas has jurisdiction under Section 12162, General Code, to grant a writ of habeas corpus to a person unlawfully restrained of his liberty (Section 12161, General Code), but such court may not allow the writ where “it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment or make the order * # (Section 12165, General Code.)

It is conceded that the finding of incompetency and the appointment of a guardian by the Probate Court-was valid but it is claimed that the Court of Common Pleas had jurisdiction to inquire into the then present competency or ineompet.ency and to allow the writ if the ward be then found to be competent. When it appeared that a valid appointment by the Probate Court was still in effect the principles of law applied in the cases of In re Guardianship of Oliver, 77 Ohio St., 474, 83 N. E., 795, and Children’s Home of Marion County v. Fetter, 90 Ohio St., 110, 106 N. E., 761, should have been applied here. In the Children’s Home case it was held under the provisions of Section 12165, General Code, a ward of the Juvenile Court (Probate) might not be released by the Court of Appeals on a writ of habeas corpus. At page 127, Judge Newman said:

. “When it appeared to the Court of Appeals that the Juvenile Court had acquired jurisdiction of the child, and that it had become a ward of that court, it should have dismissed the application for a writ of habeas corpus. ’ ’

Compare In re Bartholomew, 88 Ohio St., 601, 105 N. E., 766, wherein this court said:

“Writ refused on the ground that it appears from the application that Raymond Adam Bartholomew is in the custody of the St. Joseph Seminary pursuant to an order of the Court of Appeals which court had jurisdiction to make the order placing him in said institution and that the order which it made in that behalf is not void.”

See, also, Reno v. Love, 25 C. C. (N. S.), 129, 26 C. D., 296, affirmed without opinion, Reno v. Love, 88 Ohio St., 623, 106 N. E., 1074.

The decisions of the lower courts in the instant case were based upon the holding of this court in the case of In re Remus, 119 Ohio St., 166, 162 N. E., 740. We do not think that the principles announced in the Remus case are applicable here. Remus had been acquitted of murder on the sole ground of insanity and had been committed to the Lima State Hospital under Section 13612, General Code. The majority of this court were of the opinion that the Court of Appeals had jurisdiction to hear and determine Remus’ then sanity and to grant a writ of habeas corpus.

Section 13612, General Code, as it stood prior to its repeal in 113 Ohio Laws, 215, and applicable to the Remus case provided:

“When a person tried upon an indictment for an offense is acquitted on the sole ground that he was insane, such fact shall be found by the jury in the verdict, and certified by the clerk to .the Probate 'Court. Such person shall not be discharged, but forthwith delivered to the Probate Court, to be proceeded against upon the charge of lunacy, and the verdict shall be prima facie■ evidence of his insanity.”

After commitment the Probate Court had no continuing, exclusive jurisdiction of Remus. The statutes involved in the Remus case did not contemplate the return of the prisoner to the Probate Court for further examination and adjudication. Therein lies the distinction between the Remus case and the instant case.

In this state the Probate Court do.es have continu- • ing, exclusive jurisdiction over both the ward and the guardian, where no appeal has been perfected. (Section 10501-53, General Code.)

A guardian is an officer of the court appointing him. 39 Corpus Juris Secundum, 9, Section 1.

A ward receives such status from a proceeding in rem in the Probate Court. The ward becomes the ward of the court. The control of the ward’s person and property remains in the Probate Court with the discharge of the duties in respect thereof being delegated to a guardian as the agent of the court and subject to the orders of the court.

As stated in 39 Cox-pus Jux-is Secundum, 14, Section 4:

“A guardian appointed by a court of competent jurisdiction is always under the court’s control and is subject to its directions and supervision. This is so even though the guardian was nominated by the ward. The jurisdiction of the court in this respect is exclusive and a continuing one.”

In 25 American Jurisprudence, 7, Section 2, it is said:

“The court having jurisdiction of a guardianship matter is said to be the superior guardian, while the guardian himself is deemed to be an officer of the court. ’ ’

In In re Guardianship of Oliver, supra, this court held:

“Exclusive original jurisdiction to remove a guardian being, by Section 524, Revised Statutes, vested in the Probate Court, the Court of Common Pleas is without original jurisdiction to entertain an application to remove a guardian.”

Section 524, Revised Statutes (now covered by Sections 10501-53 and 10507-61, General Code)', provided that Probate Courts should have exclusive jurisdiction to appoint and remove guardians, to direct and control their conduct and to settle their accounts.

In the case of Newton v. Hammond, 38 Ohio St., 430, this court also held that the jurisdiction of Probate Courts over the settlement of the accounts of guardians was exclusive. As stated by Judge Mcllvaine at page 436: “The probate court has control and direction of the conduct of the guardian throughout the administration of the trust.” (That case involved 2 S. & C., 1212, which later became Section 524, Revised Statutes.)

In passing it may be noted that the original adjudication and appointment were appealed to the Court of Appeals where it was urged: “That the adverse judgment is contrary to law and against the manifest weight of the evidence.” In affirming the Probate Court, the Court of Appeals said in the course of its opinion: .

“Under this state of facts, concerning-which tliere is little dispute, it is not surprising that the trial court found that she was an incompetent person, and that a guardian of her person and estate was not only:;necessary for her own.protection but for society as-well. We therefore determine that there is ample evidence to sustain the judgment.. It is not against theimanifest weight thereof, but is rather in accord therewith.”

As the order of the Court of Common Pleas in’the instant case was an interference with the jurisdiction of the Probate Court, which had previously attached to the subject matter, and the Court of Common Pleas being without .jurisdiction over either the ward or her estate, the judgment of the Court of Appeals should be and hereby is reversed.

This court coming to enter the judgment which the Court of Appeals should have entered, the judgment of the Court of Common Pleas is reversed and the petition of plaintiff (appellee here) dismissed at her costs.

Judgment reversed.

Weygandt, C. J., Zimmerman, Williams, Matthias and Hart, JJ., concur.

Bell, J.,

dissenting. At the outset it should be observed that it would be difficult to disagree with the first three paragraphs of the syllabus. The difficulty is that they are not pertinent to the question before the court. In the instant case there is no claim' that the Probate Court does not possess plenary and exclusive original jurisdiction to appoint or remove a guardian, or tliat such a proceeding is not one in rein, or that an order appointing a guardian can be impeached collaterally.

The question presented is whether a person who has been adjudged an incompetent by the Probate Court and thereafter a guardian of her person and estate has been appointed may prosecute, if and when such incompetency no longer exists, an action in the Court of Common Pleas for a writ of habeas corpus to inquire into the cause of such restraint.

The facts, briefly stated, are as follows:

On September 2, 1943, the Probate Court of Stark county issued letters of guardianship to J. J. McCall, appointing him guardian of the person and estate of one Maude Clendenning (appellee here) after entry of a decree finding that she was an incompetent person. Upon appeal on questions of law that judgment was affirmed by the Court of Appeals.

Thereafter, Maude Clendenning, filed an application for a writ of habeas corpus in the Court of Common Pleas of Stark county. The writ was issued, the guardian made due return, and after a full and complete hearing the court, on March 13, 1944, entered a judgment which insofar as pertinent here reads as follows:

“* * * and thereupon the proofs and allegations of the parties being heard and considered, the court finds, upon being duly advised in the premises, that Maude Clendenning is no.longer an incompetent person by reason of mental disability and that she is now mentally competent to take care of her. person and her property and that the cause for a guardian over her person and property does not now exist, nor for any further unlawful restraint upon her liberty.
“It is further ordered and adjudged that the writ will therefore be sustained and the said Maude Ciendenning- is discharged from any illegal restraint at the hands of the guardian. Exceptions to the guardian. ’ ’

Upon appeal by the guardian the Court of Appeals affirmed the judgment.

The correctness of the judgment of affirmance is here for review.

There can be little doubt that from and after the appointment of a guardian for the person and estate of Maude Clendenning she was deprived of her liberty as to her estate — she was no longer competent to enter into any contract or to in anywise handle her own affairs — as to her person she was subject to the orders of her guardian. So long as she remained an. incompetent person such restraint was not illegal; on the other hand if and when such incompetency was removed the restraint became illegal.

The holdings in the Justes and Fetter cases, cited in the majority opinion, are inapplicable. There is no factual similarity between the instant case and either of those cases.

In the Justes case an attempt was made to interrupt the progress of a criminal trial by the filing of a petition for a writ of habeas corpus in this court. Upon the face of that petition it was evident that the petitioner was not unlawfully restrained of his liberty. Therefore the writ was denied.

In the Fetter case it was adjudged by the Juvenile Court of Marion county that Howard Fetter, a nine-year old child, was incorrigible and a delinquent ‘ ‘ and therefore comes into the custody of the court, and will continue for all necessary purposes of discipline and protection, a ward of the court, until he shall attain the age of twenty-one years.”

Thereafter Howard Fetter, upon a warrant issued for that purpose, was delivered to the Children’s Home of Marion county “to be there received, cared for, educated and kept, subject to the control of and until discharged by the proper authorities of said institution, or until further orders of this court upon the proper adjustment of the differences of said parents.”

About one month after such commitment, Minnie Fetter, the mother of such infant, filed an application for a writ of habeas corpus in the Court of Appeals for Marion’county, claiming that she was entitled to the custody of the child. That court granted the writ and ordered £ ‘ that said officers and agents of the children’s home deliver said child to Minnie Fetter * * *.”

Upon review this court held that “a proceeding in habeas corpus by a parent against the institution or its officers for the custody of the child will not lie.”

At page 127 it is said:

“When it appeared to the Court of Appeals that the juvenile court had acquired jurisdiction of the child, and that it had become a ward of that court, it should have dismissed the application for a writ of habeas corpus.'1'1

I can see no analogy with the instant case.

Section 12161, General Code, provides:

“A person unlawfully restrained of his liberty, or a person entitled to the custody of another, of which custody he is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation..”

Section 12162, General Code, provides:

“The writ of habeas corpus may be granted by the Supreme Court, the Court of Appeals, the Common Pleas Conrt, the Probate Court, or by a judge of either.”

By virtue of the provisions of those sections, where a petition is filed in the. Court of Common Pleas in which it is alleged that petitioner is unlawfully deprived of his liberty, it is the duty of the court to issue the writ and inquire into the cause of such restraint.

In the majority opinion it is conceded that the Court of Comon Pleas has jurisdiction to grant a writ of habeas corpus to a person unlawfully restrained of his liberty and then Section 12165, General Code, is quoted, as to when the writ shall not be allowed. That section can have no possible application to a situation where the petitioner has been adjudged an incompetent, idiot, imbecile or lunatic, and it is alleged in his application for the writ that he has been restored to reason.

I have no quarrel with the proposition that in the instant case the appellee also had a remedy under Section 10507-61, General Code. I do not agree with the conclusion that that was her exclusive remedy. This court held to the contrary in the case of In re Remus, 119 Ohio St., 166, 162 N. E., 740.

In that case it appeared that Remus, in December 1927, had been acquitted by the verdict of a jury of murder, on the ground of insanity, and thereafter was committed by the Probate Court to the Lima State Hospital. On February 1, 1928, Remus filed an application for a writ of habeas corpus in the Court of Appeals of Allen county. He alleged that he was unlawfully restrained of his liberty by detention in the Lima State Hospital. A writ was granted and upon hearing the court found as a fact that Remus was then sane and ordered his discharge.

This court upon review affirmed that judgment.

Paragraphs 1, 2 and 4 of the syllabus read as follows :

‘ ‘ One who is acquitted of murder on the sole ground of insanity and who has been committed to the Lima State Hospital for the insane, is not deprived from thereafter seeking a writ of habeas corpus for the purpose of showing that he is sane and therefore unlawfully restrained of his liberty.

“Section 1998, General Code (98 O. L., 240), authorizing the superintendent of such institution to discharge such inmate who ‘in his judgment’ is recovered, etc., does not preclude the inmate from applying to a court of competent jurisdiction for a determination of his sanity, — to a tribunal which is empowered to use its process, and to hear sworn testimony upon that issue.”

“The fact that the Probate Court, pursuant to Section 13612, General Code, had previously ordered the commitment of the inmate to such hospital and error had been prosecuted from such order, constitutes no bar to a subsequent application for a writ of habeas corpus, where the sanity or insanity of the inmate at the later period may. be determined by the court.”

Judge Jones, in writing for this court, beginning on page 173, uses this language which is pertinent here:

“The question in the Probate Court (although counsel for petitioner claim there was none such) is, and must have been, whether the prisoner in December, 1927, was then sane; the issue before the Court of Appeals when it heard and entered its decree in March, 1928, was whether at that time the prisoner was sane or had been restored to sanity. While the presumption of his insanity in December may have continued, it did not necessarily follow except by way of presumption, that the inmate was also insane three months later when the Court of Appeals entered its decree; at least this was a question of fact to be determined by the Court of Appeals under the proper rules of evidence. A pending case could have no more vitality than an adjudicated case as a bar against future applications for the writ of habeas corpus-, and an adjudication of an inmate’s previous mental condition is no adjudication of his condition at a later period. It is established by overwhelming authority in this country, and elsewhere, that a previous adjudication of an inmate’s mental condition constitutes no bar to another and later application for release from custody by way of habeas corpus upon claim and proof of sanity at the time of his later application. People v. Brady, 56 N. Y., 182; People, ex rel. Maglori, v. Siman, 284 Ill., 28, 30, 119 N. E., 940; Coston v. Coston, 25 Md., 500, 506; In re Snell, 31 Minn., 110, 16 N. W., 692; People v. Lamb, supra.”

On page 174 it is said:

“The decisive question in this case was one of fact rather than of law.”

In his concurring opinion in that case Judge Kinkade, at page 179, uses this language:

“It requires a decree of some court to establish the fact of insanity and to place any individual in an insane asylum. We are not aware of any tendency on the part of the Legislature to weaken or change this safeguard thus thrown around the individual citizen who becomes incapable of taking care of himself. When the light of reason comes again, who shall say that he may not appeal to the courts if and when it becomes necessary to secure his liberty. Is there any better use that can be made of the time-honored and sacred writ of habeas corpus than to then employ it in liberating a sane person from an insane asylum ¶”

That language applies with equal force to one adjudged to be an incompetent person.

I fail to find any disagreement among the judges upon the question of jurisdiction. Chief Justice Marshall and Judges Day and Allen dissented. The first two wrote no opinions;. Judge Allen’s dissent was based upon the proposition that there was no proof that Remus had been restored to reason.

In the majority opinion in the instant case this language is used:

“After commitment the Probate Court had no continuing, exclusive jurisdiction of Remus. The statutes involved in the Remus case did not contemplate the return of the prisoner to the Probate Court for further examination and adjudication. Therein lies the distinction between the Remus case and the instant case.”

Let us examine that statement.

Section 10507-61, General Code, is the statute which the majority says provides the exclusive remedy here. Section 11010, General Code, was in-effect at the time the Remus case was decided.

A comparison of those two sections will disclose that although in Section 10507-61, General Code, the phraseology has been somewhat changed, the substance is the same as in Section 11010, General Code.

The Constitution of this state guaranteed to appellee that the privilege of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion, the public safety requires it. Therefore she had the constitutional as well as the statutory right to prosecute in this court, in the Court of Appeals, in the Court of Common Pleas or the Probate Court, a writ of habeas corpus to inquire into and determine whether she was being unlawfully restrained of her liberty. She chose to apply to the Court of Common Pleas.

The conclusion of the majority does suspend the privilege of the writ of habeas corpus so far as she is concerned.

The judgment of the Court of Appeals should be affirmed.  