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in the probate court adjudging Sam Pollard is too clear for argument that this qualification a person of unsound mind, the judgment of and attempted authority for depriving the acthe circuit court declaring the same void tice violates both the state and federal Consti

cused of his liberty or property without noshould be and is reversed.

tutions, and does not constitute 'due process

of law,' But one reason can be suggested for FARRINGTON, J., concurs.

not serving the person to be tried with notice, and that is that, as he is insane, a notice to him

would be useless and meaningless. This argu. BRADLEY, J. (dissenting). It does not ap- ment begs the question; for the issue to be pear on what ground the circuit court found tried is whether he is insane or not, and to fail that the probate court had no jurisdiction, to give him notice for this reason is to forestall but apparently it was on the first ground al- he be a raving maniac, he can appear by attor

the very purpose of the inquest. But, even if leged in relator's petition, to wit: “Because ney or through his friends, and see that a propno notice was given or served upon relator er person is appointed guardian or that propof such proceedings, and that he did not vol- er care is given to his property and to his per

In addition, what if the person was not untarily appear to the proceedings in said really insane at all, and without notice was adcourt." It is conceded that no notice was judged insane and confined in an asylum, and served upon relator, Sam Pollard; but ap- the management of his property given to an

other? In such contingency the propriety of pellant contends that an order was made to notice would be manifest, and if given would bring relator before the court, and that said defeat the recovery of a judgment. It will not relator was before the court at the time of do to say that in the 57 years that these provithe inquiry into his sanity, and therefore no sions not requiring notice have been on the stat

ute books no instance is recorded of any sane notice was required. There is nothing in the person being so adjudged and deprived of his probate proceedings before us which tends liberty or property, and that instances of such to show that Sam Pollard was even present outrages are found only in highly colored and at the probate trial, except a presumption of Marquis Case is an instance in our own Reports

improbable stories in works of fiction; for the right action on the part of the probate court, where a citizen was so adjudged insane, withand, if Pollard was present, he was in the out notice, and at the very next term of court custody of the sheriff. There is no showing appeared and proved that he was not and never

was insane. But, however the past experience that relator participated, or was given an may have been, the fact remains that the possiopportunity to participate, in the proceedings bility of such an outrage being perpetrated is to determine his sanity. The proceedings in afforded by the statutory provisions referred to, the probate court here in question were un- question arises, to prevent the happening of

and it is the duty of the courts, whenever the der section 476, R. S. 1909, which is as fol- such a wrong, by declaring those provisions to lows:

be unconstitutional." "In proceedings under this article, the alleged I am of the opinion that all that part of insane person must be notified of the proceeding, section 476, supra, dispensing with notice, unless the probate court order such person to be brought before the court, or spread upon its has been void since the decision in the Hunt records of its proceedings the reason why such Case. I cannot see how any other conclunotice or attendance was not required.”

sion can be logically drawn, Judge Marshall Appellant contends that he followed the said that it was the statutory provisions which letter of the statute, and thereby acquired afforded the opportunity to deprive the aljurisdiction of the person of relator; and leged insane person of the right to notice. but for the opinion in Hunt v. Searcy, 167 There were but two provisions which underMo. 158, 67 S. W. 206, this might seem ten- took to dispense with notice, and these proable in the light of some of the cases prior visions are: (1) Unless the probate court to that case, which prior opinions are dis- order such person to be brought before the cussed somewhat at length in the Hunt Case. court, or (2) spread upon the records of its The point in the Hunt Case, so far as of proceedings the reason why such notice or moment here, was that the record of the pro- attendance was not required. It is conceded bate proceedings did not affirmatively show in the majority opinion that neither the that the alleged insane person was notified order to bring before the court, nor the of the proceeding. After an extensive re. spreading upon the record why notice was view of the authorities bearing upon the not given, is sufficient to dispense with no statute under consideration, and the "due tice. The Hunt Case declared both provisions process" clause of both the state and fed- void, yet the majority opinion would base eral Constitutions, Judge Marshall, speak- an order upon a void provision of a statute, ing for the Supreme Court in Hunt v. Searcy, and breathe validity into a void provision supra, 167 Mo. loc. cit. 182, 67 S. W. 214, from the fact that the alleged insane person said:

was before the court in pursuance of an order "It only remains to apply these principles to based upon a void provision. The constructhe statute and the case at bar. The statute of tion placed upon the opinion in the Hunt 1845 is silent as to notice, and only gave the court a discretion as to requiring the body of Case by the Kansas City Court of Appeals the alleged lunatic to be brought into court, in Bank v. Shanklin, 174 Mo. App. loc. cit. which was held in the case of In re Marquis, 642, 161 S. W. 342, is in accord, in my judgsupra, not to dispense with notice. The statute ment, with the views here expressed. In of 1879 requires notice unless the person is brought into court, or a reason for not notifying that case the court said: him or for not bringing his body into court is "But defendant insists that the proceedings spread upon the records of the proceedings. It in probate court adjudging the defendant to be

insane and appointing a guardian are void, Hunt Case, and I would request that this since they were had without notice to defendant, case be certified, but for the fact that the as is shown upon the face of the judgment we have set out. This objection to the judgment Legislature (Laws 1917, p. 102) has settled the must be sustained. The statute in force when matter as to notice beyond controversy. For the adjudication was had authorized the proceed the reasons above given, I think the judg. ing to be instituted and carried on to judgment ment of the trial court quashing the probate and the appointment of a guardian, without notice, if the court placed upon its record the proceedings adjudging Sam Pollard insane reason why such notice' was not required. A correct, and I therefore dissent. similar statute was construed and accepted as being a valid enactment in Dutcher v. Hill, 29 Mo. 271 [77 Am. Dec. 572), and other cases since. But in Hunt v. Searcy, 167 Mo. 158

BOLMAN v. BULLENE. (No. 11805.) [67 S. W. 206), the Supreme Court, in an opinion by Marshall, J., after expressing surprise

(Kansas City Court of Appeals. Missouri, that the validity of the statute had not thereto

March 4, 1918.) Aict with both the federal and state Constitu- 10. A. Lucas, Judge. fore been questioned, declared it to be in con

Appeal from Circuit Court, Jackson County ; tions, and that proceeding in the probate

"Not to be officially published." court without notice to the alleged insane party

Suit by Jessie Bolman against Lathrop Bulwas void collaterally as well as directly."

lene. From a judgment for plaintiff, defendant In State ex rel. v. Duncan, 195 Mo. App. appeals. Reversed. 541, 193 S. W. 950, where section 476 was

See, also, 200 S. W. 1068. under consideration, the court said (195 Mo.

Hadley, Cooper & Neel and Cook & Gossett, App. loc. cit. 551, 193 S. W. 954):

all of Kansas City, for appellant. J. C. Rosen

berger, of Kansas City, and Marvin E. Boisseau, “Although the statute (section 476) merely of St. Louis, for respondent. says the person must be notified, yet this means that written notice must be served upon him, and such notice is a 'jurisdictional paper,' and Walter v. Bolman, were riding as guests of an

PER CURIAM. Plaintiff and her husband, corresponds to the summons in ordinary ac- other in an automobile, when, in attempting to tions. Crow v. Meyersieck, 88 Mo. 411. It has the force of a summons, and, ,,without notice, McGee streets, in Kansas City, it was crashed

pass over the intersection at Thirteenth and an inquiry into sanity is void.” Citing Hunt into by an automobile owned by defendant, but v. Searcy, supra.

driven by the latter's son-in-law upon a matter State ex rel. v. Guinotte, 257 Mo, loc. cit. of his own concern and business, and not upon

Plaintiff brought 17, 165 S. W. 718, 51 L. R. A. (N. S.) 1191, any business of defendant. Ann. Cas. 1915D, 658, is substantially to the verdict for $5,000, which by remittitur was re

She obtained a

this suit for her injuries. same effect.

duced to $3,000 and interest from date of judg. Granting that Sam Pollard was present at ment. Thereupon defendant appealed to this

court. the hearing, he was in effect a prisoner in

A similar suit brought by plaintiff's husband the custody of the sheriff. If the notice is for the personal injuries he received resulted in jurisdictional, as held in State ex rel. v. Dun- a verdict in excess of $7,500, thereby placing can, supra, State ex rel. v. Guinotte, supra, the appellate jurisdiction of the case in the and Crow v. Meyersieck, supra, then what Supreme Court. The appeal in plaintiff's case

to us was submitted at the October term, 1915. will dispense with it? Nothing but the entry While considering the case, our attention was of appearance of the alleged lunatic or called to the fact that the case of Hays v. Howaiver of notice in some legitimate manner. gan, 180 Mo. App. 237, 165 S. W. 1125, had Notwithstanding his incapacity, the alleged been certified to the Supreme Court by the

Springfield Court of Appeals, and, as it involvlunatic may enter his appearance or waive ed one of the vital points in the case at bar, we notice. Crow v. Meyersieck, supra. But concluded to lay our case aside until a decision who would contend that Sam Pollard “enter- in that case was had. After so doing, we dised” his appearance, as that expression is covered that the companion case of plaintiff's

husband was pending in the Supreme Court, understood in law, from the fact that the and this was an additional and still better reasheriff took him into custody and forthwith son for our delaying a determination of the case before the probate court, where a hearing before us. The Supreme Court has, at the Ocwas had as to his sanity, without his partici-tober term, 1917, in cases Nos. 18573, Hays v.

Hogan, 200 S. W. 286, and 18845, Walter V. pation in the proceedings, or an opportunity Bolman v. Bullene, 200 S. W. 1068 (neither of to participate therein, so far as the record which is as yet officially reported), relieved us here shows. This does not square with my of the responsibility of passing upon the quesidea of waiving process or entering appear-theory of respondeat superior.

tion of defendant's liability, based upon the

In accordance with the ruling in those cases I entertain no doubt about the effect of the the judgment herein is reversed.

ance.

forfeiture, the Commissioner, on the same STOCKWELL et al. v. ROBISON, Commis- day, classified the land as agricultural and sioner of General Land Office, et al. appraised it at $4.00 per acre; the list, ap(No. 2900.)

praisement and notice of the forfeiture being (Supreme Court of Texas. April 3, 1918.) sent at the same time to the county clerk of 1. PUBLIC LANDS Ow172(8)–PAYMENT OF In the county where the land lay, and received TEREST-FORFEITURE.

by him at 4 P. M. on August 29, 1916, and Purchasers of public lands, against whom recorded in his office at 10 A. M. on August forfeiture has been declared for failure to pay 30, 1916. In the list of lands duly advertised installments of interest, may be relieved of the forfeiture only in the absence of intervening by the Commissioner as subject to forfeiture rights of other persons.

if the interest were not paid by August 15, 2. PUBLIC LANDS 172(3) REAPPRAISE- 1916, and as subject to purchase on Septem

MENT AND SALE -- APPLICATIONS — TIME OF ber 1, 1916, these sections were included,MAKING AFFIDAVIT.

Where purchasers of public lands failed classed as agricultural land and their apto pay installments of interest, and the sale was praised value being stated as $4.00 per acre. declared forfeited, and other persons made ap- On September 1, 1916, the applications plication in due course of mails, as required by respectively of Clyde Hudson and W. T. Vernon's Sayles' Ann. Civ. St. 1914, art. 5410; Morris to purchase the two sections as home and made bids for more than the appraised value, tendered the required cash payment, and tracts at $4.03 per acre were received by mail filed the necessary affidavit, they perfected their at the Land Office. Each was in due form rights to the land, although the affidavit was and accompanied by the necessary preliminamade a few days before the land was officially declared to be for sale, but was duly filed as ry payment, the obligation of the applicant, required, by mail.

and the affidavit required of him by law, 3. PUBLIC LANDS 172(8) REAPPRAISE- dated August 28, 1916. The applications MENT-DISCRETION OF COMMISSIONER.

were duly filed at 10 A. M. the following day, The commissioner of public lands may, under Vernon's Sayles' Ann. Civ. St. 1914, art. September 2d. On the same day, September 5407, when a second forfeiture has been de- | 2d, the relators had a bank of Alvin, Texas, clared, reappraise land at less than the amount wire the Commissioner that it was remitting at which it was once appraised, under Acts 33d him the interest due by the relators, the Leg. c. 160 (Vernon's Sayles' Ann. Civ. $t. 1914, amount of which they had delivered to the arts. 5423a-5423f), permitting repurchase by former purchasers whose purchase was declared bank for that purpose. The telegram was forfeited; his powers under the general statute received by the Commissioner that afternoon. being independent of those inferred by the act The amount of the interest was forwarded of 1913.

and received at the Land Office on the mornOriginal petition for mandamus by William ing of September 5th. The Commissioner R. Stockwell and another against J. T. Robi- refused to reinstate the purchases of the son, as Commissioner of the General Land relators because of the rights acquired by Office, and others. Writ refused.

Hudson and Morris. Gregg & Love, of Austin, and Hudspeth, [1] The relators were entitled to be relieved Dale & Harper, of El Paso, for Clyde Hudson. of the forfeiture declared against them for B. F. Looney, Atty. Gen., and G. B. Smedley, the non-payment of their interest only in the Asst. Atty. Gen., for respondents.

absence of intervening rights in others. They

made no offer to pay the interest until after PHILLIPS, C. J. The relators, William Hudson and Morris had filed their applicaR. Stockwell and H. L. Tolar, here seek a tions to purchase. Hence the question in mandamus to require the Commissioner of the case is whether Hudson and Morris acthe Land Office to re-instate their purchases quired any rights to the land. of two sections of public land. The land was [2] When the applications of Hudson and originally awarded to George C. Harris and Morris were filed in the Land Office the land A. L. Harris. The awards to them were for- was on the market for sale. From aught feited on July 12, 1913, for failure to pay the that appears here, their bids were the highest interest on their obligations. They applied offered. Each was for more than the appraisfor its re-appraisement under the Act of 1913 ed value. They tendered the required cash (Chapter 160, General Laws of 1913), and it payment and obligation, and filed with their was re-appraised under that act, one of the applications the necessary affidavit. In our sections being valued at $5.00 per acre and opinion they perfected their rights to the the other at $6.00 per acre. Thereafter, the land. two sections were re-awarded to the original The chief objection urged against their owners, to whose rights the relators succeed-claims is that they made their attidavits on ed as substitute purchasers. They failed to August 28th,-prior to the time the land was pay the interest accruing November 1, 1915. on the market, rendering, it is said, their They were notified by the Commissioner in applications premature. We think the objecApril, 1916, that a forfeiture would be declar- tion is wholly without force. Anyone entitled ed on August 15, 1916, unless they paid the to purchase land in the situation of this interest by that time. It was not paid, and may make application for it at any time on August 25, 1916, the sales to them were after it is open to purchase, even though it duly declared as forfeited. Following the be immediately afterward. This is plainly

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the contemplation of the law since it does respect to appraisements found in the Act not postpone the right to make the applica- of 1913, and it was not affected by that act. tion to any particular period after the land It gave full warrant to the Commissioner'a is upon the market. The application is of action. no effect until filed in the Land Office, though The mandamus is refused. the statute-- Article 5410_provides that it shall be filed “through due course of mail and not by anyone in person." Byrne v.

Ex parte ROGERS. (No. 4967.) Robison, 103 Tex. 20, 122 S. W. 256. It would be a very unreasonable requirement (Court of Criminal Appeals of Texas. March to compel everyone entitled to bid upon these

13, 1918.) lands on the day they are subject to purchase HABEAS CORPUS Om92(1)—MATTERS REVIEW

ABLE-GUILT OR INNOCENCE. to come to the state capital for the purpose

The merits of a case involving the guilt or of making the necessary affidavits to accom- innocence of an accused is not a proper subject pany their applications, in order to avoid of inquiry in a writ of habeas corpus. their being made before the identical day the

Appeal from District Court, El Paso Counapplications may be lawfully filed. On the

ty; W. D. Howe, Judge. contrary, it is the theory of the law that the

Habeas corpus proceedings by Pearl Rogapplications may be mailed from points in

ers, indicted for statutory rape. From the region of the land, in most instances judgment fixing bail, she appeals. Reversed, remote from the capital, requiring ordinarily and amount of bail reduced. a few days for transmission. It is apparent that this was true of the applications of

P. E. Gardner and Jackson, Isaacks & LesHudson and Morris which were made in sing, all of El Paso, for appellant. E. B. Yoakum County where this land is situated. Hendricks, Asst. Atty. Gen., for the State. In such cases there can be to our minds no objection to the affidavits being made sub MORROW, J. The relator was the keeper stantially at the time the applications are of a house of prostitution. One of the inmailed, where, as here, the truthfulness of mates of the house was a girl under 15 years their statements, either when made or when of age. She appears to have been a prostitute the applications are filed, is in nowise chal- in Mexico and had come to the relator's lenged. It is evident that the affidavits of house at the instance of her sister and to Hudson and Morris were made on August have continued her vocation while there 28th for the purpose of having their applica- with relator's knowledge and at her instance. tions reach the Land Office as early as pos- Based on the facts thus briefly summarized, sible after the land was upon the market. relator was indicted for statutory rape in They were made only a few days prior to three cases. She was ordered released on that date. The applications were not receiv- bail in the sum of $10,000 in one case and ed or filed before the land was open to pur- $5,000 in each of the others. chase, and were therefore not premature. Her appeal is based on the proposition that The affidavits were of no effect until the the facts do not show she was a principal. applications were filed. Under the facts they The merits of a case involving the guilt

to be treated as having been made or innocence of an accused is not a proper contemporaneously with the filing of the subject of inquiry in a writ of habeas corpus. applications. McGee et al. v. Corbin, 96 Tex. Ex parte Windsor, 78 S. W. 510; Ex parte 35, 70 S. W. 79.

Adams, 90 S. W. 24; Ex parte Kent, 49 Tex. [3] The further contention is made that Cr. R. 12, 90 S. W. 168; Ex parte Jennings, the Commissioner's re-appraisement of the 76 Tex. Cr. R. 116, 172 S. W. 1143; Ex parte land at $4.00 an acre after its appraisement McKay, 199 S. W. 637. under the Act of 1913 at a higher value and We think, considering the facts of the after the forfeiture of the sales to relators case, that the amount of the bail should be declared on August 25, 1916, was void. In reduced. It is accordingly ordered that the so appraising the land the Commissioner judgment of the lower court fixing the bail acted under the authority conferred upon him at the amounts stated be reversed, and the by Article 5407. The office of this article amount be reduced in each case to the sum is entirely distinct from the provisions in of $3,000.

are

For other cases see same topic and KLY-NUMBER in al! Key-Numbered Digests and Indexes

The record contains neither a statement of MORSE V. STATE. (No. 4935.)

facts nor bills of exception. In the absence of

these, there arr no questions raised that can be (Court of Criminal Appeals of Texas. March reviewed. 13, 1918.)

The judgment of the lower court is affirmed. 1. INTOXICATING LIQUORS O236(1)-ENGAG

ING IN BUSINESS OF SELLING-SUFFICIEN-
CY OF EVIDENCE.
Evidence held to sustain conviction for en-

RED v. STATE. (No. 4902.) gaging in business or occupation of selling in- (Court of Criminal Appeals of Texas. Feb. 13, toxicants in a prohibition county.

1918.) 2. CRIMINAL LAW Ow1090(19)-REVIEW-MoTION FOR CONTINUANCE.

Appeal from District Court, Smith County; Although appellant on motion for new trial J. R. Warren, Judge. complained of the overruling of his motion for a

Phil Red was convicted of violating the local continuance, where he took no bill to the court's option law, and he appeals. Appeal dismissed, action, the ruling cannot be reviewed.

at defendant's request.

E. B. Hendricks, Asst. Atty. Gen., for the Appeal from District Court, Lamar Coun- State. ty; Ben H. Denton, Judge. Ben Morse was convicted of engaging in

DAVIDSON, P, J. Appellant was convicted

of violating the local option law, and prosecutthe business or occupation of selling intoxi- ed an appeal. cating liquors in a prohibition county, and The record is without statement of facts or he appeals. Affirmed.

bills of exception, and was submitted upon the

record at the last session of this court. Since E. B. Hendricks, Asst. Atty. Gen., for the its submission, appellant has filed an applicaState.

tion, properly certified and sworn to, asking the withdrawal of his appeal.

The application will be granted, and the apPRENDERGAST, J. Appellant was con- peal will be dismissed, at appellant's request. victed of engaging in the business or occupation of selling intoxicating liquors in Lamar, a prohibition, county, and assessed the lowest punishment.

FIELDS v. STATE. (No. 4896.) [1] The proof shows that prohibition had (Court of Criminal Appeals of Texas. Feb. 13, been in force in Lamar county for three years

1918.) before this prosecution was begun and at the time of the trial. The state proved four sales County; L. D. Guinn, Judge.

Appeal from District Court, Nacogdoches of intoxicating liquor by appellant from the Albert Fields was convicted of rape, and he latter part of September to some time in appeals. Affirmed. January following, and that during and be

E. B. Hendricks, Asst. Atty. Gen., for the

State. fore this time he had received through the express company eight distinct shipments of PRENDERGAST, J. Appcllant was convictliquor, which he admitted receiving. The ed of rape, and appealed. court in a proper charge, to which there was of exception, and nothing presented which can

There is no statement of facts, nor any bills no complaint, submitted every issue aptly to be reviewed in the absence of these. the jury. The evidence was sufficient to sus- The judgment is affirmed. tain the conviction.

[2] There is no bill of exceptions. In his motion for a new trial he complains of the court overruling his motion for a continu- WILSON et al. v. HUTCHESON. (No. 7430.) ance. He took no bill to the court's action;

(Court of Civil Appeals of Texas. Galveston. hence that question cannot be reviewed un

Dec. 14, 1917. Rehearing Denied der the well-established law of this state.

Feb. 7, 1918.) Appellant has filed no brief.

JUDGMENT 720—CONCLUSIVENESS-BOUNDThe judgment is affirmed.

ARIES.

Where a decree dividing land between the owners contained a call for distance, and also incorporated therein prior partition deeds and

a subdivision map, held, the distance call could DYE v. STATE. (No. 4877.)

not be selected from among such descriptions, (Court of Criminal Appeals of Texas. Feb. 13, so as to render the decree conclusive as to ad1918.)

joining tract's common boundary line. Appeal from District Court, Collin County ; Appeal from District Court, Harris CounM. H. Garnett, Judge.

ty; Wm. Masterson, Judge. Will Dye, alias Red, was convicted of theft,

Suit by J. C. Hutcheson against H, T. D. and he appeals. Affirmed.

Wilson and others. Judgment for plaintiff, E. B. Hendricks, Asst. Atty. Gen., for the State.

and defendants appeal. Reversed and re

manded. MORROW, J. Appellant was convicted of theft, and his punishment assessed at two years'

Harry Holmes and Ross & Wood, all of confinement in the penitentiary.

Houston, for appellants. J. C. Hutcheson and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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