THE motion for rehearing says that we misapprehended the case by supposing that Isham had been tried for lunacy in the county court of Adams county, and his residence in Adams county is thereby determined. It now appears that he was not tried there, but the situation of the case is not altered because it appears that upon the preliminary writ he was ordered held at the psychopathic department of the Colorado General Hospital in Denver; that upon a motion to quash for want of jurisdiction he presented his own affidavit that he for a long time past had been a resident of Denver. The affidavit of his wife contradicted this and presented evidential matters in some detail, tending strongly to refute it. In denying the motion to quash, the court must have found the fact that he was a resident of Adams county. The effect, then, of the writ of habeas corpus would be to review that finding of the county court. We cannot see that such a course would be right. We still think that the county court has jurisdiction if the residence of the alleged lunatic is in Adams county. For preliminary purposes that is now determined. It is impossible to determine it otherwise except by retrial of the fact, which turns, the habeas corpus proceeding into an appeal with trial de novo. People ex rel. v.District Court, 22 Colo. 422, 45 P. 402.
The motion for rehearing now raises a new question, not raised before, viz., that the county court had no authority, without bringing the accused into court, to order him held preliminarily. Under our rules they cannot take that position on motion for rehearing, but even if this *Page 384 were not so, proceedings have been begun in a court having jurisdiction of the subject matter, they have arrested his person and have served him with a statutory notice that the inquiry as to his sanity will take place, they thus have jurisdiction of the person, and, under the statute (C.L. § 551), it is the duty of the court, pending the hearing, to order him held "in a hospital or some other convenient or suitable place." It must be noted that there is no allegation that there is unreasonable delay in hearing the case on its merits, and that the said statute does not require him to be brought before the court except in case he is apprehended without order of the court, in which case he shall be taken immediately before the judge. The present petitioner was apprehended under an order of court in the proper manner, but sometimes it is necessary to apprehend an insane person without any order and he is protected in such case by the above provisions.
The new point is also made that the General Psychopathic Hospital is not a lawful place to confine a man, because the statutes with reference to that hospital do not provide for commitment thereto in the manner in which this man was committed. Since this point is new it cannot be made in a motion for rehearing, but if it could, we think the proceedings within the terms of ch. 158, S.L. 1923. This point, however, we do not decide. The motion for rehearing is denied. Opinion modified and judgment affirmed.
MR. JUSTICE BURKE sitting as chief justice.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE ADAMS not participating. *Page 385