{ "id": 1462367, "name": "Kindrick, Curator v. Capps", "name_abbreviation": "Kindrick v. Capps", "decision_date": "1938-11-21", "docket_number": "4-5256", "first_page": "1169", "last_page": "1176", "citations": [ { "type": "official", "cite": "196 Ark. 1169" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 S. W. 2d 232", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 751", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425611 ], "opinion_index": 0, "case_paths": [ "/ark/189/0751-01" ] }, { "cite": "124 S. W. 255", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546805 ], "opinion_index": 0, "case_paths": [ "/ark/93/0103-01" ] }, { "cite": "55 S. W. 2d 788", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724880 ], "opinion_index": 0, "case_paths": [ "/ark/186/0672-01" ] }, { "cite": "152 La. 662", "category": "reporters:state", "reporter": "La.", "case_ids": [ 1283953 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/la/152/0661-01" ] }, { "cite": "90 So. 735", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 8841085 ], "opinion_index": 0, "case_paths": [ "/la/150/0387-01" ] }, { "cite": "150 La. 388", "category": "reporters:state", "reporter": "La.", "opinion_index": 0 }, { "cite": "138 S. W. 973", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "99 Ark. 374", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314551 ], "opinion_index": 0, "case_paths": [ "/ark/99/0374-01" ] }, { "cite": "298 S. W. 507", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "174 Ark. 1127", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726376 ], "opinion_index": 0, "case_paths": [ "/ark/174/1127-01" ] }, { "cite": "5 S. W. 704", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "49 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309318 ], "opinion_index": 0, "case_paths": [ "/ark/49/0397-01" ] }, { "cite": "150 S. W. 135", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "105 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1346991 ], "opinion_index": 0, "case_paths": [ "/ark/105/0005-01" ] }, { "cite": "80 S. W. 884", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "72 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505552 ], "opinion_index": 0, "case_paths": [ "/ark/72/0265-01" ] }, { "cite": "142 S. W. 836", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "101 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311023 ], "opinion_index": 0, "case_paths": [ "/ark/101/0390-01" ] }, { "cite": "204 S. W. 614", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "135 Ark. 43", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571549 ], "opinion_index": 0, "case_paths": [ "/ark/135/0043-01" ] } ], "analysis": { "cardinality": 766, "char_count": 13876, "ocr_confidence": 0.494, "pagerank": { "raw": 1.1766611061078138e-07, "percentile": 0.5876607091764809 }, "sha256": "3c61ac6914e047af3d052e46613f9720c60bb81e5588cd949403c3368a4d31de", "simhash": "1:30cc96f4645a7075", "word_count": 2368 }, "last_updated": "2023-07-14T16:57:18.765663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kindrick, Curator v. Capps." ], "opinions": [ { "text": "Griffin Smith, C. J.\nAppellants seek to have a decree of the Miller chancery court set aside insofar as it affects a one-fifty-fourth interest in 227.25 acres of land. The property was formerly owned by Edward Terry, who died leaving six children, one of whom was Cynthia Rebecca Parker. Mrs. Parker left nine heirs, including a daughter who is now Smythie Parker Kindrick, one of the appellants herein.\nIn a Miller chancery cause entitled Calvin A. Terry et al. v. Mrs. Eva Rives et al., the lands in question were sold in 1917, the court having sustained allegations of the complaint for partition that the acreage was not susceptible of division in kind. Mrs. Kindrick was one of the defendants, and her address was given as Myrtis, Louisiana. The decree recites appointment of an attorney ad litem for the non-resident defendants; publication of a warning order; report of the attorney ad litem showing that all non-resident defendants had been duly notified, and the certificate of such attorney that no matters of defense had been communicated to him.\nThe instant suit was brought by Elbert Kindrick, curator, and A. E. Parker, under-curator, for Smythie Parker Kindrick, an incompetent; and by B. A. Skipper, the latter acting for himself. Due to oil activities, the land has increased in value.\nWith respect to the 1917 decree, it is alleged that the sale thereunder was void as to Mrs. Kindrick because she was insane; that she was joined as a non-resident'defendant without the fact of her incompetency having been brought to the attention of the court; that the attempted service through publication and notice from the attorney ad litem were ineffective, and that these defects deprived the court of jurisdiction.\nEvidence in behalf of appellants was to the effect that Mrs. Kindrick was confined to the state hospital for insane at Pineville, Louisiana, from December 24, 1913, until May of the following year, at which time she was discharged. Other similar commitments were in 1928 and 1931. In 1936 Mrs. Kindrick was again committed, but on this occasion there was a judgment of insanity by a proceeding known to the Louisiana law as an interdiction; and at the time this cause was heard she was a ward of the state.\nFrom May, 1914, until 1928, Mrs. Kindrick was at liberty. During that period she bore two children. Relatives and neighbors testified to her unusual behavior, some expressing the opinion that she was not normal, and was not competent to attend to business matters. Witnesses for appellees, while not stressing Mrs. Kindrick\u2019s constant sanity, gave evidence as to rational intervals. ' These witnesses were inclined' to regard her more as a religious fanatic than as one bereft of reason.\nIt is urged by appellees that a decree of foreclosure in 1924 and a decree of confirmation in 1928, involving a part of the land, cured any defects that may have resulted from the sale and confirmation of 1917.\nIn defense of the decree of 1917 appellees say (1) that the present suit is a collateral, attack, and as such is not maintainable; (2) that if a direct attack has been attempted, it must fail because appellants did not comply with statutory requirements; (3) that a foreign guardian or curator has no extra-territorial authority, and therefore such representative appointed in Louisiana cannot, sue in Arkansas; (4) that the commitment of Mrs. Kindrick in 1913 was not an adjudication of insanity and g-ave no notice of such; (5) that there was no formal adjudication of insanity until 1936, and (6) even though Mrs. Kindrick was insane she could sue and be sued.\nAppellants\u2019 suit is a collateral attack. There was nothing before the court in 1917 to indicate that Mrs. Kindrick was insane. Taylor et al. v. King, 135 Ark. 43, 204 S. W. 614; Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836; Love v. Kaufman, 72 Ark. 265, 80 S. W. 884; McDonald v. Fort Smith & Western Railroad Co., 105 Ark. 5, 150 S. W. 135.\nIn the McDonald case it was said: \u201cA judgment pronounced ag-ainst one without notice is void; and \u00a7 4424 of Kirby\u2019s Digest is a statutory declaration of that principle. But in all cases seeking to impeach a judgment for want of notice the question involved is, what is the character of the evidence which is necessary to show such notice or want thereof? This question was fully and well considered by this court in the case of Boyd v. Roane, 49 Ark. 397 [5 S. W. 704]. It was there held that in the case of a domestic judgment collaterally attacked, \u2018the question of notice or no notice must be tried by the court upon an inspection of the record only. \u2019 This ruling has been adhered to so often that the doctrine thus laid down can be considered settled in this state. The judgment of a domestic court having general and superior jurisdiction is presumed regular and valid, and founded upon jurisdiction properly acquired. Our statute provides that when it appears from the recital in the record of the court that notice has been given it shall be evidence of such fact (Kirby\u2019s Digest, \u00a7 4425) and in the case of Love v. Kaufman [supra] it was held that when a judgment recited that the defendants \u2018were duly served with summons herein as required by law, \u2019 it must be taken as true unless there is something' in the record to contradict it-.\u201d See cases cited.\nThe opinion in the McDonald case contained this additional declaration of the law: \u201cThe judgment in the condemnation suit which plaintiff seeks in this case to impeach recites that process was duly and regularly served on said Ella Hare, who was made a party defendant in this suit. This recital is conclusive evidence upon collateral attack of this judgment that Ella Hare, whether sui juris or laboring under disability, was served with process in the manner prescribed by law.\u201d\nThese pronouncements, and holdings of similar purport to be found in many of our cases, are conclusive of the proposition that a final judgment or decree of a court having jurisdiction of the subject-matter is invulnerable to collateral attack if such judgment or decree contains a finding that those things necessary to give jurisdiction of the person or the res were done.\nAppellants insist that their attack is not collateral, but direct; that the decree of 1917, being void, was in fact no decree insofar as Mrs. Kindrick is concerned. The procedure for vacating or modifying judgments, decrees, or final orders after lapse of the term appears as \u00a7\u00a7 8246 to 8252, and \u00a7 1541, of Pope\u2019s Digest. The fifth subdivision of \u00a7 8246 affords relief from \u201cerroneous proceedings against . . . a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.\u201d There is the additional recourse to bill of review under the chancery practice. Ingram v. Raiford, 174 Ark. 1127, 298 S. W. 507. Although the sections referred to are available in proper cases, \u00a7 8249 imposes the condition that a judgment shall not be vacated \u201cuntil it is adjudged that there is a valid defense to the action in which the judgment is rendered.\u201d It has been held, however, that the grounds to vacate are to be tried before it is necessary to establish validity of the defense. Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973. Appellants have not alleged a meritorious defense. The complaint reads: \u201cThe lands were sold pursuant to an order of the court in 1917, and the proceeds [$1,500] divided among certain of the parties.\u201d\nThere is nothing in the record, or in the complaint as abstracted by appellants, to indicate that if Mrs. Kindrick had been present when the sale was consummated, in possession of her normal faculties, a result different from that confirmed by the chancellor could have been realized.\nIt is not necessary to determine whether the Louisiana guardian or curator had authority to sue in Arkansas. We have a statute, \u00a7 1309, Pope\u2019s Digest, authorizing\u2019 administrators and executors appointed in any of the states to sue in the courts of this state in their representative capacity, \u201cto the same and like effect as if such administrators and executors had been qualified under the laws of this state.\u201d This section does not mention guardians or curators. [But see \u00a7 6293, Pope\u2019s Digest.]\nMrs. Kindrick was discharged or dismissed from the Pineville hospital in 1914. Appellants argue that where a person has been adjudged insane, a presumption follows that the condition or status continues until there has been an adjudication or finding to the contrary. Appellees insist that there was no finding of insanity until 1936. Appellees also insist that through witnesses who testified in their behalf they established, as a matter of fact, that Mrs. Kindrick was not insane from 1914 until 1936, while appellants are just as insistent that a preponderance of the evidence shows that Mrs. Kindrick was insane when incarcerated; that she was not sane when released, nor was she sane from 1914 until 1917, or thereafter.\nIt is our view that appellants are not sustained in this contention. Approximately twenty years elapsed between the date of the patient\u2019s release and the time witnesses gave their testimony. It was not until 1928 that steps were taken to reconfine Mrs. Kindrick. The chancellor made no specific finding of sanity or insanity, but it will be presumed, in view of the decree, that he found she was sane in 1917. One of her children was born in 1915 and another in 1919, and she reared both of them.\nIt is next urged by appellees that the proceedings in Louisiana prior to 1936 were not sufficient to constitute notice of Mrs. Kindrick\u2019s alleged insanity.\nIn VaMce. v. Ellerbo, 150 La. 388, 90 So. 735, a headnote is: \u201cWhere a defendant in partition proceedings was insane, but not interdicted, and the citation of such defendant was valid on its face, a judgment rendered in the proceeding was voidable, but not void. \u2019 \u2019 Another note to the same case reads: \u201cA judgment in partition will not be annulled for the reason that one of the defendants was insane, unless the other parties to the judgment are before the court.\u201d And again: \u201cA citation against an insane person not interdicted, which is regular in form, and bears the return of a legal domiciliary service made at the home of the defendant, held valid, notwithstanding that defendant was in an asylum elsewhere, since, if he had no capacity, he could not acquire a new domicile. ...\u201d '\nThe law of Louisiana provides two distinct methods of dealing with persons of unsound mind: (1) Commitment, which is a proceeding for restraining and confining insane persons for their own and the public\u2019s safety. This proceeding is ex parte, and is in the name of the state. (2) Interdiction. In distinguishing the two proceedings the Louisiana Supreme Court has said that the first is informal and need not be set aside when the patient recovers, while the latter is highly formal and requires all the solemnity of contested judicial proceedings, including a formal judgment to restore civil rights after the mental derangement has ended.\nIn Oliver et ux. v. Terrall, 152 La. 662, 94 So. 152, a headnote reads: \u201cA summary coiamitment to an insane asylum is a mere matter of police [regulation], and not an interdiction. ... It produces none of the civil effects of such interdiction, and need not be revoked when the person is discharged on recovering his sanity. \u2019 \u2019\nIt would seem that, in Louisiana, when Mrs. Kindrick was released from the state hospital in May, 1914 \u2014nearly two years before the chancery proceedings in Miller county, Arkansas, were had \u2014 the discharge \u201cwas all that was necessary to remove her disabilities\u201d; and she was in position to sue and be sued.\nThe Louisiana Supreme Court further said that if, in such cases, illegal restraint should be exercised against a person whose sanity had been restored, but who had not been interdicted, habeas corpus would be the proper remedy.\nIn Missouri State Life Insurance Company v. Holt, 186 Ark. 672, 55 S. W. 2d 788, we quoted with approval from Peters v. Townsend, 93 Ark. 103, 124 S. W. 255, the following: \u201cAn insane person not under guardianship can sue and be sued the same as a sane person, and the foregoing provision of the Constitution [art. 7, \u00a7 34] does not exclude the jurisdiction of other courts to hear and determine suits by or against insane persons whether under guardianship or not. . . .\u201d\nEquitable Life Assurance Society v. Mann, 189 Ark. 751, 75 S. W. 2d 232, is another case in point. In the opinion it is said: \u201cIt is urged forcefully that, since [Hubert E. Mattison] was adjudicated to be insane in 1929, the presumption of insanity continues and particularly by reason of the fact that he has returned, and was at the time of the filing of this suit, and is yet, an inmate of [the Western State Hospital at Bolivar, Tennessee], However, he was paroled the last time in September of 1933, and the effect of such parole is such as to raise another presumption of restored sanity.\u201d\nFrom the decisions and statutes cited, it follows that when Mrs. Kindrick was released from the asylum in 1914, there arose a presumption, both in Louisiana and Arkansas, that her sanity had been restored; and certainly this presumption attached in 1917 when the partition suit was heard. At that time Mrs. Kindrick was subject to the regular processes of the law. In the absence of any showing' of fraudulent concealment- of an adverse mental condition which \u2019might have existed in spite of the presumption of . sanity attending release, the court acquired jurisdiction in the manner set out in the decree.\nAffirmed.", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "M. A. Matlock and June P. Wooten, for appellant.", "Bert B. Larey, Shaver, Shaver S Williams, J. S. Atkinson, Fred E. Greer, Arnold <& Arnold, A. L. Burford, E. M. Barney and Frank S. Qtmm, for appellee." ], "corrections": "", "head_matter": "Kindrick, Curator v. Capps.\n4-5256\nOpinion delivered November 21, 1938.\nM. A. Matlock and June P. Wooten, for appellant.\nBert B. Larey, Shaver, Shaver S Williams, J. S. Atkinson, Fred E. Greer, Arnold <& Arnold, A. L. Burford, E. M. Barney and Frank S. Qtmm, for appellee." }, "file_name": "1169-01", "first_page_order": 1187, "last_page_order": 1194 }