in the probate court adjudging Sam Pollard a person of unsound mind, the judgment of the circuit court declaring the same void

should be and is reversed.

FARRINGTON, J., concurs.

BRADLEY, J. (dissenting). It does not appear on what ground the circuit court found that the probate court had no jurisdiction, but apparently it was on the first ground alleged in relator's petition, to wit: "Because no notice was given or served upon relator of such proceedings, and that he did not voluntarily appear to the proceedings in said court." It is conceded that no notice was served upon relator, Sam Pollard; but appellant contends that an order was made to bring relator before the court, and that said relator was before the court at the time of the inquiry into his sanity, and therefore no notice was required. There is nothing in the probate proceedings before us which tends to show that Sam Pollard was even present at the probate trial, except a presumption of right action on the part of the probate court, and, if Pollard was present, he was in the custody of the sheriff. There is no showing that relator participated, or was given an opportunity to participate, in the proceedings to determine his sanity. The proceedings in the probate court here in question were under section 476, R. S. 1909, which is as follows:

"In proceedings under this article, the alleged insane person must be notified of the proceeding, unless the probate court order such person to be brought before the court, or spread upon its records of its proceedings the reason why such notice or attendance was not required."

| is too clear for argument that this qualification and attempted authority for depriving the accused of his liberty or property without notice violates both the state and federal Constitutions, and does not constitute 'due process of law.' But one reason can be suggested for 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 argument begs the question; for the issue to be tried is whether he is insane or not, and to fail to give him notice for this reason is to forestall the very purpose of the inquest. But, even if he be a raving maniac, he can appear by attorney or through his friends, and see that a proper person is appointed guardian or that proper care is given to his property and to his person. In addition, what if the person was not really insane at all, and without notice was adjudged insane and confined in an asylum, and the management of his property given to another? In such contingency the propriety of notice would be manifest, and if given would defeat the recovery of a judgment. It will not do to say that in the 57 years that these provisions not requiring notice have been on the statute books no instance is recorded of any sane person being so adjudged and deprived of his liberty or property, and that instances of such outrages are found only in highly colored and Marquis Case is an instance in our own Reports improbable stories in works of fiction; for the where a citizen was so adjudged insane, without notice, and at the very next term of court appeared and proved that he was not and never was insane. But, however the past experience may have been, the fact remains that the possibility of such an outrage being perpetrated is afforded by the statutory provisions referred to, and it is the duty of the courts, whenever the question arises, to prevent the happening of such a wrong, by declaring those provisions to be unconstitutional."

I am of the opinion that all that part of section 476, supra, dispensing with notice, has been void since the decision in the Hunt Case. I cannot see how any other conclusion 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 that the alleged insane person was notified of the proceeding. After an extensive review of the authorities bearing upon the statute under consideration, and the "due process" clause of both the state and federal Constitutions, Judge Marshall, speaking for the Supreme Court in Hunt v. Searcy, supra, 167 Mo. loc. cit. 182, 67 S. W. 214, said:

"It only remains to apply these principles to the statute and the case at bar. The statute of 1845 is silent as to notice, and only gave the court a discretion as to requiring the body of the alleged lunatic to be brought into court, which was held in the case of In re Marquis, supra, not to dispense with notice. The statute

of 1879 requires notice unless the person is brought into court, or a reason for not notifying him or for not bringing his body into court is spread upon the records of the proceedings. It

in the majority opinion that neither the order to bring before the court, nor the spreading upon the record why notice was not given, is sufficient to dispense with notice. The Hunt Case declared both provisions void, yet the majority opinion would base an order upon a void provision of a statute, and breathe validity into a void provision from the fact that the alleged insane person was before the court in pursuance of an order based upon a void provision. The construction placed upon the opinion in the Hunt Case by the Kansas City Court of Appeals in Bank v. Shanklin, 174 Mo. App. loc. cit. 642, 161 S. W. 342, is in accord, in my judgment, with the views here expressed. In that case the court said:

"But defendant insists that the proceedings in probate court adjudging the defendant to be

insane and appointing a guardian are void, since they were had without notice to defendant, as is shown upon the face of the judgment we have set out. This objection to the judgment must be sustained. The statute in force when the adjudication was had authorized the proceeding to be instituted and carried on to judgment and the appointment of a guardian, without notice, if the court placed upon its record 'the reason why such notice' was not required. A 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 [67 S. W. 206], the Supreme Court, in an opinion by Marshall, J., after expressing surprise that the validity of the statute had not theretofore been questioned, declared it to be in conflict with both the federal and state Constitutions, and that a proceeding in the probate court without notice to the alleged insane party was void collaterally as well as directly.'

In State ex rel. v. Duncan, 195 Mo. App. 541, 193 S. W. 950, where section 476 was under consideration, the court said (195 Mo. App. loc. cit. 551, 193 S. W. 954):

"Although the statute (section 476) merely 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 'corresponds to the summons in ordinary actions. Crow v. Meyersieck, 88 Mo. 411. It has the force of a summons, and, without notice, an inquiry into sanity is void." Citing Hunt v. Searcy, supra.

State ex rel. v. Guinotte, 257 Mo. loc. cit. 17, 165 S. W. 718, 51 L. R. A. (N. S.) 1191, Ann. Cas. 1915D, 658, is substantially to the same effect.

Granting that Sam Pollard was present at the hearing, he was in effect a prisoner in the custody of the sheriff. If the notice is jurisdictional, as held in State ex rel. v. Duncan, supra, State ex rel. v. Guinotte, supra, and Crow v. Meyersieck, supra, then what will dispense with it? Nothing but the entry of appearance of the alleged lunatic or waiver of notice in some legitimate manner. Notwithstanding his incapacity, the alleged lunatic may enter his appearance or waive notice. Crow v. Meyersieck, supra. But who would contend that Sam Pollard "entered" his appearance, as that expression is understood in law, from the fact that the sheriff took him into custody and forthwith before the probate court, where a hearing was had as to his sanity, without his participation in the proceedings, or an opportunity to participate therein, so far as the record here shows. This does not square with my idea of waiving process or entering appear

ance.

Hunt Case, and I would request that this case be certified, but for the fact that the Legislature (Laws 1917, p. 102) has settled the matter as to notice beyond controversy. For the reasons above given, I think the judgment of the trial court quashing the probate proceedings adjudging Sam Pollard insane correct, and I therefore dissent.

BOLMAN v. BULLENE. (No. 11805.)
(Kansas City Court of Appeals. Missouri.
March 4, 1918.)

O. A. Lucas, Judge.
Appeal from Circuit Court, Jackson County;

"Not to be officially published."

Suit by Jessie Bolman against Lathrop Bullene. From a judgment for plaintiff, defendant appeals. Reversed.

See, also, 200 S. W. 1068.

Hadley, Cooper & Neel and Cook & Gossett, all of Kansas City, for appellant. J. C. Rosenberger, of Kansas City, and Marvin E. Boisseau, of St. Louis, for respondent.

PER CURIAM. Plaintiff and her husband, Walter V. Bolman, were riding as guests of another in an automobile, when, in attempting to pass over the intersection at Thirteenth and McGee streets, in Kansas City, it was crashed into by an automobile owned by defendant, but driven by the latter's son-in-law upon a matter of his own concern and business, and not upon Plaintiff brought any business of defendant. this suit for her injuries. She obtained a verdict for $5,000, which by remittitur was reduced to $3,000 and interest from date of judgment. Thereupon defendant appealed to this

court.

A similar suit brought by plaintiff's husband for the personal injuries he received resulted in a verdict in excess of $7,500, thereby placing the appellate jurisdiction of the case in the Supreme Court. The appeal in plaintiff's case to us was submitted at the October term, 1915. While considering the case, our attention was called to the fact that the case of Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125, had Springfield Court of Appeals, and, as it involvbeen certified to the Supreme Court by the ed one of the vital points in the case at bar, we concluded to lay our case aside until a decision in that case was had. After so doing, we discovered that the companion case of plaintiff's husband was pending in the Supreme Court, and this was an additional and still better reason for our delaying a determination of the case before us. The Supreme Court has, at the OcHogan, 200 S. W. 286, and 18845. Walter tober term, 1917, in cases Nos. 18573, Hays v. Bolman v. Bullene, 200 S. W. 1068 (neither of which is as yet officially reported), relieved us of the responsibility of passing upon the question of defendant's liability, based upon the theory of respondeat superior.

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

!

STOCKWELL et al. v. ROBISON, Commis-
sioner of General Land Office, et al.
(No. 2900.)

(Supreme Court of Texas. April 3, 1918.)
1. PUBLIC LANDS 172(8)-PAYMENT OF IN-
TEREST-FORFEITURE.

Purchasers of public lands, against whom forfeiture has been declared for failure to pay installments of interest, may be relieved of the forfeiture only in the absence of intervening rights of other persons.

2. PUBLIC LANDS 172(3) REAPPRAISEMENT AND SALE - APPLICATIONS-TIME OF MAKING AFFIDAVIT.

Where purchasers of public lands failed to pay installments of interest, and the sale was declared forfeited, and other persons made application in due course of mails, as required by Vernon's Sayles' Ann. Civ. St. 1914, art. 5410, and made bids for more than the appraised value, tendered the required cash payment, and filed the necessary affidavit, they perfected their rights to the land, although the affidavit was made a few days before the land was officially declared to be for sale, but was duly filed as required, by mail.

3. PUBLIC LANDS 172(8) REAPPRAISE-
MENT-DISCRETION OF COMMISSIONER.
The commissioner of public lands may, un-
der Vernon's Sayles' Ann. Civ. St. 1914, art.
5407, when a second forfeiture has been de-
clared, reappraise land at less than the amount
at which it was once appraised, under Acts 33d
Leg. c. 160 (Vernon's Sayles' Ann. Civ. St. 1914,
arts. 5423a-5423f), permitting repurchase by
former purchasers whose purchase was declared
forfeited; his powers under the general statute
being independent of those inferred by the act
of 1913.

Original petition for mandamus by William
R. Stockwell and another against J. T. Robi-
son, as Commissioner of the General Land
Office, and others. Writ refused.

Gregg & Love, of Austin, and Hudspeth, Dale & Harper, of El Paso, for Clyde Hudson. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondents.

forfeiture, the Commissioner, on the same day, classified the land as agricultural and appraised it at $4.00 per acre; the list, appraisement and notice of the forfeiture being sent at the same time to the county clerk of the county where the land lay, and received by him at 4 P. M. on August 29, 1916, and recorded in his office at 10 A. M. on August 30, 1916. In the list of lands duly advertised by the Commissioner as subject to forfeiture if the interest were not paid by August 15, 1916, and as subject to purchase on September 1, 1916, these sections were included,classed as agricultural land and their appraised value being stated as $4.00 per acre. On September 1, 1916, the applications respectively of Clyde Hudson and W. T. Morris to purchase the two sections as home tracts at $4.03 per acre were received by mail at the Land Office. Each was in due form and accompanied by the necessary preliminary payment, the obligation of the applicant, and the affidavit required of him by law, dated August 28, 1916. The applications were duly filed at 10 A. M. the following day, September 2d. On the same day, September 2d, the relators had a bank of Alvin, Texas, wire the Commissioner that it was remitting him the interest due by the relators, the amount of which they had delivered to the bank for that purpose. The telegram was received by the Commissioner that afternoon. The amount of the interest was forwarded and received at the Land Office on the morning of September 5th. The Commissioner refused to reinstate the purchases of the relators because of the rights acquired by Hudson and Morris.

[1] The relators were entitled to be relieved of the forfeiture declared against them for the non-payment of their interest only in the absence of intervening rights in others. They made no offer to pay the interest until after Hudson and Morris had filed their applications to purchase. Hence the question in the case is whether Hudson and Morris acquired any rights to the land.

[2] When the applications of Hudson and Morris were filed in the Land Office the land was on the market for sale. From aught that appears here, their bids were the highest offered. Each was for more than the appraised value. They tendered the required cash payment and obligation, and filed with their applications the necessary affidavit. In our opinion they perfected their rights to the

PHILLIPS, C. J. The relators, William R. Stockwell and H. L. Tolar, here seek a mandamus to require the Commissioner of the Land Office to re-instate their purchases of two sections of public land. The land was originally awarded to George C. Harris and A. L. Harris. The awards to them were forfeited on July 12, 1913, for failure to pay the interest on their obligations. They applied for its re-appraisement under the Act of 1913 (Chapter 160, General Laws of 1913), and it was re-appraised under that act, one of the sections being valued at $5.00 per acre and 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 affidavits 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 mandamus is refused.

Ex parte ROGERS. (No. 4967.) (Court of Criminal Appeals of Texas. 13, 1918.)

March

HABEAS CORPUS 92(1)-MATTERS REVIEW

ABLE-GUILT OR INNOCENCE.

The merits of a case involving the guilt or innocence of an accused is not a proper subject of inquiry in a writ of habeas corpus.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Habeas corpus proceedings by Pearl Rogers, indicted for statutory rape. From judgment fixing bail, she appeals. Reversed, and amount of bail reduced.

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's is upon the market. The application is of action. no effect until filed in the Land Office, though the statute-Article 5410-provides that it shall be filed "through due course of mail and not by anyone in person." Byrne v. Robison, 103 Tex. 20, 122 S. W. 256. It would be a very unreasonable requirement to compel everyone entitled to bid upon these lands on the day they are subject to purchase to come to the state capital for the purpose of making the necessary affidavits to accompany their applications, in order to avoid their being made before the identical day the applications may be lawfully filed. On the contrary, it is the theory of the law that the applications may be mailed from points in the region of the land, in most instances remote from the capital, requiring ordinarily a few days for transmission. It is apparent that this was true of the applications of Hudson and Morris which were made in Yoakum County where this land is situated. In such cases there can be to our minds no objection to the affidavits being made substantially at the time the applications are mailed, where, as here, the truthfulness of their statements, either when made or when the applications are filed, is in nowise challenged. It is evident that the affidavits of Hudson and Morris were made on August 28th for the purpose of having their applications reach the Land Office as early as possible after the land was upon the market. They were made only a few days prior to that date. The applications were not received or filed before the land was open to purchase, and were therefore not premature. The affidavits were of no effect until the applications were filed. Under the facts they are to be treated as having been made contemporaneously with the filing of the applications. McGee et al. v. Corbin, 96 Tex. 35, 70 S. W. 79.

P. E. Gardner and Jackson, Isaacks & Lessing, all of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. The relator was the keeper of a house of prostitution. One of the inmates of the house was a girl under 15 years of age. She appears to have been a prostitute in Mexico and had come to the relator's house at the instance of her sister and to have continued her vocation while there with relator's knowledge and at her instance. Based on the facts thus briefly summarized, relator was indicted for statutory rape in three cases. She was ordered released on bail in the sum of $10,000 in one case and $5,000 in each of the others.

Her appeal is based on the proposition that the facts do not show she was a principal. The merits of a case involving the guilt or innocence of an accused is not a proper subject of inquiry in a writ of habeas corpus. Ex parte Windsor, 78 S. W. 510; Ex parte Adams, 90 S. W. 24; Ex parte Kent, 49 Tex. Cr. R. 12, 90 S. W. 168; Ex parte Jennings, 76 Tex. Cr. R. 116, 172 S. W. 1143; Ex parte McKay, 199 S. W. 637.

[3] The further contention is made that the Commissioner's re-appraisement of the land at $4.00 an acre after its appraisement 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.

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

E. B. Hendricks, Asst. Atty. Gen., for the its submission, appellant has filed an applicaState.

(Court of Criminal Appeals of Texas. Feb. 13, so as to render the decree conclusive as to ad

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