DISSENTING OPINION. This appeal involves matters of such unusual concern, not only to the unfortunate person directly affected, but also to the public, that I am warranted in stating at some length the reasons why I dissent.
The statute under which this proceeding was instituted is in some respects an extraordinary piece of legislation; and, because of its extraordinary character, it is essential that its scope and purpose be given some consideration.
For centuries, in civilized countries, it has been regarded as a duty of the state to care for two classes of incompetents, viz., infants and insane adults. From time immemorial, infants have been recognized as incompetents because of that immaturity of reason and judgment which in law is conclusively presumed to be the concomitant of childhood and to render them incapable of managing their estates. Having passed the period of infancy and attained maturity, every adult is regarded as competent to care for his person and property, unless rendered incompetent because of deranged, disordered or inadequate mentality. In this jurisdiction, adequate power to care for the persons and estates of infants has been vested in the courts from the beginning. The statute now in force which provides for the care of the persons and estates of adults who are of unsound mind was enacted in the year 1853. § 3424 et seq. Burns 1926, § 3100 et seq. Burns 1914. Infants and insane adults have been regarded for many years as the two main classes of incompetents. In the year 1867, the legislature added another class, viz., habitual drunkards; and provided for the appointment of guardians to take charge of their persons and estates. § 3446 et seq. Burns 1926, § 6175 etseq. Burns 1914. An habitual drunkard is an incompetent *Page 432 because the excessive use of intoxicating liquor has resulted in a debilitated intellect and consequent loss or deterioration of reason, sense and judgment. Inebriates or dipsomaniacs are usually classed with lunatics. Coombs, Gdn., v. Janvier (1865), 31 N.J. Law 240.
The incompetency of each of the three classes above mentioned rests on a psychological basis — mental deficiency. Now, did the legislature, by the act of 1911, intend to declare certain classes of persons to be incompetent without regard to their state of mind? The inquiry is directly involved in the case at bar. The act designates four classes of incompetents: (1) The aged; (2) the infirm; (3) the improvident; and (4) spendthrifts.
The significance of the words "old age" is always indefinite. What is the minimum length of years to be attained before one may be properly classed as a person of old age? Is it not true that a man may be rightfully regarded by his fellow men as a person of old age while his mental faculties are unimpaired? May an aged man who is blessed with good intelligence, firmness, sense and judgment, be compelled to surrender his body and property into the hands of a guardian? These questions bring home the truth that in a proceeding to adjudge a person an incompetent because of old age, his mental state is the controlling factor. Before he may be so adjudged, the proof must show that he has lapsed into the condition commonly known as dotage, and in medical science designated senile dementia. 32 C.J. 610.
"Infirm" means "not firm or sound; weak; feeble; weak of mind or will; irresolute; vacillating; debilitated; sickly; feeble; decrepit; imbecile." Webster's Dic. "Infirmity" is a word of broad significance. It may denote a defect either of the mind or of the body. Here the question arises: Did the legislature intend *Page 433 that a person may be adjudged an incompetent because of a physical infirmity which does not affect his state of mind?
"Improvident" means "wanting foresight or forethought; not foreseeing or providing for the future." Webster's Dic. The improvident are many. There were ten bridesmaids; five of them were provident and five improvident. It would seem that this feature of the statute should be enforced with great caution lest one-half the adult population shall be called upon to take charge of the other half. But the fact to be emphasized is that improvidence is due to defective mentality.
In the absence of a statutory definition a "spendthrift" is "one who spends money profusely or improvidently; a prodigal; one who lavishes or wastes his estate." Webster's Dic. Manifestly the tendency characteristic of a spendthrift is due to deficient mentality — to the lack of sense and judgment.
Thus it appears that an adult may not be adjudged an incompetent of any class specified in the act of 1911 (as amended) except on the basis of defective mentality; unless the word "infirmity" may be so construed as to include a physical infirmity not affecting the mind. To hold that physical infirmity alone, however severe, could constitute incapacity within the statute, would be preposterous, dangerous to every citizen, inimical to the welfare of the state, and unconstitutional.Schafer v. Haller (1923), 108 Ohio St. 322, 140 N.E. 517. The implication in the main opinion that the statute has been held constitutional as to this feature is misleading and without support. The word "infirmity" must be construed so as to limit it to mental infirmity — infirmity of the intellect or will. The words "old age and infirmity," as used in the complaint, must be construed to mean the mental infirmity of old age. It follows that *Page 434 the action of the court in adjudging Mrs. Harvey an incompetent solely on the ground of physical infirmity is without authority of law and is utterly void.
If the main opinion is to stand, as against the foregoing objection to its validity, then there is another feature which must not be permitted to go unchallenged. That feature is the procedure. With respect to the procedure applicable in this class of cases, the main opinion is not clear and, if permitted to stand, will inevitably mislead the trial courts and members of the bar and will jeopardize the rights and security of citizens. That the procedure prescribed by the statute is intended for a special purpose, fully appears when we come to consider the nature of proceeding.
It should be observed as a preliminary to this discussion that the three statutes above mentioned are identical in character and purpose. They rest on the same fundamental principles and the decisions relating to the act of 1853 are applicable to the act of 1911 (as amended), except in so far as the legislature may have made slight differences in the procedure.
In the very nature of things, the proceeding cannot be a civil action within the Code. Galbreath v. Black (1883),89 Ind. 300; Studabaker v. Markley (1893), 7 Ind. App. 368; Martin v. Motsinger (1892), 130 Ind. 555, Ann. Cas. 1913C 327. The legislature recognized the fact that the proceeding is not a civil action within the Code by providing that the "issue shall be tried as issues in civil actions." The person who files the "complaint" has no cause of action. He is not seeking to enforce any right or to redress any wrong. He can have no vested interest in his neighbor's unfortunate mental condition. In the legal sense, manifestly his interest in the matter can be no different than that of any other member of the community; unless possibly where the information is filed by one who is dependent *Page 435 upon the incompetent for support. He has not a right to dismiss the proceeding, at least not without the consent of the court. He has not that right for the following reasons: (1) It is not his private affair; (2) the public has an interest in the matter, especially the governmental unit upon whose taxpayers the unfortunate person may become a charge; and (3) those, if any, who are dependent on the incompetent for their support, are entitled to consideration. Studabaker v. Markley, supra;Hughes v. Jones (1889), 116 N.Y. 67, 22 N.E. 446, 15 Am. St. 386, 5 L.R.A. 632; Hamilton v. Traber (1893), 78 Md. 26, 27 A. 229, 44 Am. St. 258.
It has been said that the proceeding is adversary. Jessup v.Jessup (1893), 7 Ind. App. 573. By that statement, the court meant to emphasize the fact that the proceeding is not exparte. The proceeding may result in the deprivation of an adult citizen's dearest rights — his natural and constitutional rights — and, therefore, it is essentially adversary in the sense that every step necessary to due process of law must be strictly observed. Nevertheless, in the very nature of things it cannot beadversary in the sense in which that word is used in ordinary civil actions. It is not adversary in the sense that it implies hostility. It is not adversary in the sense that it implies a conflict of personal interests. No man of honor would suffer himself to become the adversary of one who is aged and infirm, in a proceeding of this kind, for any purpose of personal profit or advantage. No man with a spark of chivalry in his soul would brand his adversary "incompetent" and then proceed to vanquish him.
The truth is that the proceeding is an inquest. The so-called "complaint" is the information which invokes the action of the court. The purpose of the inquest is to protect the incompetent by conserving his estate and *Page 436 providing proper care for his person. Upon the filing of the information, the proceeding becomes one by the state in its character of parens patria. It is a proceeding in which the state undertakes to exercise its parental care for its unfortunate citizens by promoting their welfare. Studabaker v.Markley, supra; Hayward v. Hayward, Admr. (1917),65 Ind. App. 440; Kutzner v. Meyers (1915), 182 Ind. 669, Ann. Cas. 1917A 872; Prokosch v. Brust (1915), 128 Minn. 324, 151 N.W. 130; In re Welch (1900), 108 Wis. 387, 84 N.W. 550; 14 R.C.L. 555; 32 C.J. 627.
Notwithstanding its beneficent purpose, the proceeding is uniformly regarded as one fraught with the most serious consequences. If the subject of the inquest is found to be an incompetent, the proceeding results in depriving him, "not only of his personal liberty and the control of his property, but also of his place in the community as a rational being." Asbury v.Frisz (1897), 148 Ind. 513; Jessup v. Jessup, supra. That proceedings of this character present an unusual opportunity for fraud and oppression is quite obvious. There can be no doubt that if the courts should relax their vigilance and firmness, human vultures with insatiate greed, and impatient prospective heirs at law with itching palms, would seize upon the opportunity thus afforded to oppress the aged and to despoil them of their property. Studabaker v. Markley, supra. The procedure required by the statute is for the special purpose of preventing fraud and imposition. Fiscus v. Turner (1890), 125 Ind. 46;Martin v. Motsinger, supra; Asbury v. Frisz, supra. Meager though they are, those provisions are for the protection of the citizen, and, for that reason, they must be strictly followed; otherwise, upon proper application, the judgment will be set aside. Martin v. Motsinger, supra; Asbury v. Frisz, supra;Soules v. Robinson (1902), 158 Ind. 97, *Page 437 62 N.E. 999, 92 Am. St. 301; 14 R.C.L. 556, § 8; 22 Cyc 1122 etseq.; 36 Cyc 800 et seq.; 19 C.J. 804.
In the case at bar, the record discloses that ten months and eleven days after the filing of the "complaint," Lena Leota Harvey (herein designated Mrs. Harvey) filed her verified application to set aside the "judgment" and the appointment of the guardian. Her application was filed under the same title and number as that of the original proceeding. In the briefs, her application is called a "motion"; but, regardless of the label put upon it by counsel, it is a perfectly good application or complaint to be relieved from the action of the court in appointing the guardian, and to be permitted to have a hearing on the original complaint.
In her application, she uses the word "judgment," but apparently by that she means the appointment of the guardian; for, at that time, there was no judgment. Furthermore, at that time, there was no record showing service, appearance, issues, trial or verdict. As to all these features, the record was silent as the grave. How did the guardian meet the situation? By filing a verified motion seeking to have the court make a record nuncpro tunc.
It appears from the record that the summons was signed by the clerk of the court on January 17, 1921; that the day fixed therein for her appearance in court was January 27, 1921; and that no return thereof has ever been made by the sheriff showing service by him. The affidavit of Guy R. Ayres, indorsed on the summons and showing a pretended service by him on January 17, 1921, effectively and completely excludes the idea of a return by the sheriff. In this connection, a significant fact must not be overlooked. The oath which constitutes the verification to the pretended return was administered to Ayres by Joseph A. Dickey. The record *Page 438 discloses that both Ayres and Dickey were at the time acting as attorneys for the plaintiff Rodger.
A summons is fully issued when it has been signed by the clerk, the seal of the court thereunto affixed, and delivered to the sheriff. A summons in the hands of a private citizen is ineffective. § 332 Burns 1926, § 317 Burns 1914; Temple v.Irvin (1870), 34 Ind. 412; Fordice v. Hardesty (1871),36 Ind. 23; Charlestown School Tp. v. Hay (1881), 74 Ind. 127;Alexandria Gas Co. v. Irish (1899), 152 Ind. 535; Marshall v. Matson (1908), 171 Ind. 238. No one except a sheriff (in person or by deputy) or some other officer duly authorized by law, can serve a summons. That proposition is elementary. Watson, Revision Works' Prac. § 886.
The statement of Mrs. Harvey, indorsed on the summons, to the effect that she accepts service, is of no force whatever. She could not accept service at the hands of one not authorized by law to serve a summons. To permit that would be to break down the rule that service can be made only by one duly authorized by law — a rule which is essential to the protection of every citizen. Especially should it be ignored in the case of one who stands charged as an incompetent by reason of old age and infirmity. It follows that there was no service.
The general rule is that where the record is silent as to the service of summons, it will be presumed, on collateral attack, that notice was duly given. But we are now dealing with a direct attack and with a record which is not silent. Soules v.Robinson, supra.
The complaint was filed in term; the appearance day specified in the summons was a day within the same term; but there is no indorsement on the "complaint" fixing the appearance day. Therefore, in no event could the service have been effective until the next subsequent term of court. Watson, Revision Works' Prac. § 882. *Page 439
The record wholly fails to show that any answer has ever been filed to the complaint of John C. Rodger, otherwise than by the recital in the nunc pro tunc record. There is no pretense on the part of the appellee that Mrs. Harvey personally filed an answer. It is conceded that she was not in court at the original trial (if there ever was such a trial), nor at any time prior thereto; and the appellee does not even intimate that she was represented by counsel. It is true that Rodger sets out in his motion for a nunc pro tunc record what purports to be a copy of an answer, verified by her before Guy R. Ayres, notary public. Since Mrs. Harvey did not file the pretended answer, either in person or by counsel, who could have filed it? If Dickey and Ayres, or either of them, had such a document, certainly neither of them could have filed it; for they were the attorneys for the plaintiff. If they procured such a document, exhibited it to the court, or in any way used it against Mrs. Harvey when she was not present in person or by counsel, their conduct in that regard was reprehensible.
In order that there may be no misunderstanding the pretended answer is here set out in full, except the title:
"Comes now the defendant, Lena Leota Harvey, and respectfully shows to the court:
"That she waives examination by the court in the above entitled cause; that on account of physical disability she is physically unable to appear in person at said court; that she is of sound mind and disposing memory, but that on account of her present physical infirmities an emergency exists for the immediate appointment of a guardian of her person and estate; and that it is her desire that a guardian of her person and estate be appointed forthwith by this court.
"Wherefore, the said defendant, Lena Leota Harvey, prays this court to appoint forthwith the plaintiff herein, *Page 440 John C. Rodger, guardian of her person and estate, for the reasons above set out.
"(Signed) Lena L. Harvey.
"Subscribed and sworn to before me this 20th day of January, 1920.
"(Signed) Guy R. Ayres, "Notary Public. (SEAL.)
"My commission expires August 25, 1923."
Aside from the fact that it shows on its face that it was procured by one of plaintiff's attorneys, the document is wholly without merit. Had it been procured legitimately and filed in the usual and proper way, it would have been unavailing for any purpose. It does not deny the averments of the "complaint." By presenting it, no issue was raised, except perhaps indirectly as to her mental condition. It is a mere statement of the conclusions (or ultimate facts) which can be established only by proof at the trial. If it can be said that the document is a confession by Mrs. Harvey that she is an incompetent solely by reason of physical infirmity, then it is worthless; for such a confession is not authorized by the law. Of course, such a document, coming from one who stands charged as an incompetent by reason of old age and infirmity, cannot be accepted by any court for any purpose. If that sort of procedure were tolerated, it would create the opportunity for unlimited fraud and would put helpless men and women at the mercy of the cunning and unscrupulous who would not be slow to find their victims. The statute imperatively requires a full issue; and in the circumstances of this case, it was the duty of the court to direct the clerk to file an answer, to require the prosecuting attorney to represent Mrs. Harvey, and to put the issue to a trial.
In proceedings of this character, a special duty rests upon the court. Apparently the following statement *Page 441 made by this court needs to be repeated: "No responsibility of greater gravity, no higher or more important duty rests upon any public officer than that which the law imposes upon the trial judge in guarding and protecting the interests of those charged with being of unsound mind. * * * Such proceedings should be scrutinized with the greatest of care by the presiding judge; for, by them, great wrongs are liable to be perpetrated under the forms of law. * * * If the proceedings be unfounded, they are liable to work an irreparable injury to the person charged. * * * After the proceeding is instituted, his (the plaintiff's) duty is done, and that of the court begins." Studabaker v. Markley,supra.
In Wetmore's Case, the Supreme Court of Washington said: "It is inconsistent, certainly, to charge him with being incapable of managing his own affairs and at the same time hold him responsible for a failure to appear to protect his own rights in the premises." In re Wetmore's Guardianship (1893), 6 Wash. 271, 33 P. 615. In that case, Wetmore was alleged to be incompetent because of habitual drunkenness. Likewise, in the case at bar, it is inconsistent to treat the document signed by Mrs. Harvey as a confession of the truth of the averments of the complaint, or to rely on her statements therein made for any purpose, and, at the same time, adjudge her to be incapable of managing her affairs. If documents so procured and presented are to be accepted by the courts, a golden opportunity will be thus furnished for the harpies who masquerade in the guise of lawyers and use the livery of a noble profession for the perpetration of fraud.
It appears from the motion for a nunc pro tunc record, which motion is verified by the oath of Joseph A. Dickey, that the judge of the trial court indorsed on the pretended answer: "Jany. 21, 1921. Ex. approved, *Page 442 Guardian appointed and letters ordered as prayed for. William A. Kittinger, Judge." The inference is that the court treated that document as an application for the appointment of a guardian, on the same basis as in the case of infants, and that the guardian was appointed pursuant to that memorandum. The record wholly fails to show any issue presented for trial. The only legitimate construction to be put upon the record is that there was a sort of ex parte hearing only; for, in view of the facts disclosed by the record, a trial in the ordinary sense of that term was an utter impossibility. In other words, the recitals in the record are self-contradictory and self-destructive. Furthermore, the hearing was on January 21, 1921, which was the fourth day after the date of the summons and in direct violation of the requirement of the statute. It should be noted also that in the statement signed by Mrs. Harvey on the back of the summons, she says that she will not be "able to attend the trial of this cause on the 27th day of January." There is nothing whatever to show that she could not have been there within a reasonable time thereafter.
The flagrant irregularities in the proceeding were not cured by the nunc pro tunc record and could not be cured by any nuncpro tunc record. In fact, the nunc pro tunc record serves only to emphasize the irregularities. It follows that Mrs. Harvey is entitled to have the letters of guardianship canceled, the appointment of the guardian and the entire nunc pro tunc record set aside, solely on her verified application. The record itself makes a complete case in her favor and shows conclusively that she was entitled to the relief for which she asked. Therefore, a trial on her application for relief could not possibly have changed the situation.
I need not dwell longer upon the irregularities in the proceeding. This pitiful record speaks for itself. It *Page 443 convinces me that Mrs. Harvey has been entrapped and victimized by men who are incompetent — to say the least. It is the duty of this court to release her.
It is true that § 3 of the act which controls this proceeding provides that anyone who has been adjudged an incompetent may apply to the court to have the guardian removed and his property returned to him, on the ground that his former disability no longer exists and that he is now capable of managing his estate. Then, if he shall prove the averments of his application by satisfactory evidence, the court shall grant the relief. But that provision cannot be applicable to the case presented by this record. Since Mrs. Harvey has not been rightfully adjudged an incompetent, why should she assume that burden? If she should attempt to escape from her bondage by that course, she would find herself in a situation of humility and despair. How can she prove that she has recovered from old age and infirmity? Can she turn back the hands of time? The years that are gone are gone forever. If, in truth, she is not aged and infirm, then to attempt to escape by that route, she would be compelled to violate her conscience by admitting as truth that at the time the proceeding was commenced, she was a person of old age and infirmity, and then follow that admission by averring as truth the self-evident falsehood that, since the adjudication, she has grown younger. Furthermore, if I may judge the future by the past, then and in that event, she will find herself confronted by an array of counsel employed by her guardian and at her expense for the purpose of keeping her in bondage.
There is a suggestion in the main opinion that Mrs. Harvey may have accepted pecuniary benefits indirectly resulting from this proceeding; that third parties may have acquired property rights through the guardian; and that she may have stood by and "watched the *Page 444 guardian manage her business," etc. If she was lawfully adjudged an incompetent, her status was thereby fixed as that of one nonsui juris. By virtue of the statute, her body and herproperty were surrendered into the custody of her guardian. By that judgment, she lost her very existence as a person capable of determining and asserting her rights. How could she "accept" anything? Is it possible that the rule of estoppel is applicable to such a helpless creature? Is it possible that she may be chargeable with laches?
The primary purpose of the judgment is to fix her personal status. Such a judgment is not property. No one acquires any property right in it. No one can have any vested interest in it. Therefore, it may be freely set aside without affecting the rights of others. It is not unusual for courts to cancel letters of guardianship or administration improvidently issued. In all cases of that kind, including the case at bar, the law makes ample provision and the courts have adequate power to protect all persons who have had honest dealings with the guardian or administrator. However, if perchance a strange case should arise wherein someone must suffer loss, then the words of Judge Mitchell would be applicable: "The protection of persons who are so unfortunate as to be bereft of reason and incapable of managing their own estates, is a higher obligation, and an object more to be cherished by the courts, than is the protection of holders of commercial paper, however innocent they may be."Dickerson, Admr., v. Davis (1887), 111 Ind. 433. The principle on which that righteous statement rests is fully applicable to the case at bar, even if the trial court was of the opinion that mental incapacity was not involved.
Another question of vital importance arises spontaneously on the record. What standing has Rodger as a litigant in this court in opposition to Mrs. Harvey? *Page 445 He claims to be her guardian. As her guardian, his sacred duty is to protect his ward and his ward's estate. If, in truth, she is not an incompetent, he should be the first to make that fact known to the court. He should not be permitted to assume an attitude of hostility and array himself against her. He cannot rightfully expend her property to carry on this litigation.Studabaker v. Markley, supra.
It is stated in the main opinion that the Supreme Court of this state has held, in Berry v. Berry (1897), 147 Ind. 176, andShafer v. Shafer (1914), 181 Ind. 244, that a proceeding to have a person adjudged an incompetent is a civil action within the Code. If I am able to comprehend those cases, they do not so hold. It is a familiar rule that where the legislature creates a special proceeding but does not prescribe a full and complete procedure therefor, then, with respect to the issuance and service of summons, reserving exceptions, filing bills of exceptions, and other features not specified in the special statute, the general code practice will supply the deficiency. The two cases last mentioned give recognition to that rule and nothing more — so far as this feature is concerned. It would be just as reasonable to say that a proceeding to establish a ditch, to vacate a street, or to relocate a county seat, is an action within the Civil Code.
I am convinced that the judgment is wholly unauthorized by law and void, and that it is the duty of the trial court to clear its record of the void matter. If I am wrong in this, then because of the gross irregularities, the judgment should be set aside and Mrs. Harvey should be permitted to have her day in court to defend against the complaint. When she has gained her liberty by either method, it will then be the duty of the guardian to render an accounting. *Page 446