Opposition Brief — Henderson v. Shell Oil Co.

INDEX.

Supplemental statement of the case

Summary of petitioner’s argument

Summary of this respondent’s argument

Pornt I. Since the courts of Texas had jurisdic-

tion of petitioner’s person as well as of his estate, his

petition for writ of certiorari does not raise any Federal

question...

a. The fact that petitioner was present in the

County Court of Clay County, Texas, at the time the

guardian of his Texas estate was appointed in 1939

was sufficient to comply with the due process provi-

sion of the Fourteenth Amendment, even in a personal

EE CA HAG AS dc bien ted SERALA COR RARE ee AGA Sia Oe

b. Under the laws of Texas petitioner’s volun-

tary appearance in the District Court, wherein he was

granted a trial de novo, cured any lack of service

of process in the County Court

Port II. The Texas statute which provides for

the determination of the insanity of a nonresident per-

son for the purpose of appointing a guardian of his

Texas estaie does not contravene the due process pro-

vision of the Fourteenth Amendment

a. A proceeding brought for the appointment of

a guardian of the Texas estate of a nonresident person

of unsound mind is an action in rem or quasi in rem

and constructive service constitutes due process of

Por III. Upon the filing of the petition for the

appointment of a guardian the County Court of Clay

County, Texas, acquired jurisdiction of petitioner’s

ee ak civ enc ii aap doeesesknckae

II isk. W's babs cinecabe a hue sack wae wah hin hh

Arrexpix: Petitioner’s authorities do not support his

contention

TABLE OF CASES.

PAGE

Appeal of Karmany, 242 Pa. 300, 89 Atl. 84.......... 20, 38

Beeler v. Beezley, 126 Kan. 268, 267 Pac. 1112........ 34

Blinn v. Nelson, 222 U. S. 1, 56 L. ed. 65............ 4,14

Chaloner v. Sherman, 242 U. 8. 455, 61 L. ed. 427... .3,9-10

Coker v. Gay, 154 Ga. 337, 114 S. E. 217............ 20, 22

Coleman v. Cravens, et al., 41 Wash. 1, 82 Pac. 1005... 19

Cook v. Dougherty, (Ct. App. D. C.) 32 F. (2d) 839.... 7

Cooper v. Burton, (Ct. App., D. C.) 127 F. (2d) 741. .22,33

Crohn v. Modern Woodman of America, 145 Mo. App.

Be See ee le era sash vere uh cds oe ceudnes 20

Cunnius v. Reading School District, 198 U. S. 458, 49

ES AEE nace halo dee vedudwanveauanwe 4, 14, 24

Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623........ 33

Ex parte Southcote, 1 Amb. 109, 27 Eng. Rep. 71... .16,22

Federal Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747.. 34

Finley v. Hartsook, (C. C. A. 5) 158 F. (2d) 618...... 20

Glass v. Smith, 66 Tex. 548, 2S. W. 195.............. 3,7

Griffin v. Larwell, 148 Mich. 516, 111 N. W. 1089...... 20

Grinbaum v. Superior Court, 192 Cal. 548, 221 Pac.

Oe x aa os Ci ee E RRR iow chao eeeba hes 23, 29

Gronifer v. Puymirol, 19 Cal. 629. ..........ccceeeees 30

Hansell v. Hansell, 44 La. Ann. 548, 10 So. 941........ 36

Hawkins v. Tiger, 163 Okl. 55, 20 P. (2d) 578........ 31

Heavey v. Castles, (Civ. App.) 12S. W. (2d) 615...... 8

Henderson v. Shell Oil Co., Inc., (Tex. Sup.) 202 S. W.

COR A bigid ails who'd Kicaituheenn case ewes eawe’ 12, 20, 26

Henry v. Edde, 148 Kan. 70, 79 P. (2d) 888.......... 39

Hughes v. Jones, 116 N. Y. 67, 22 N. EB. 446.......... 15

Hundley v. Sumrall, 144 Ky. 73, 137 S. W. 842...... 14,20

In re Allie Walters Sacks, (Calif.) 190 P. (2d) 602.... 30

In re Burges’ Estate, (San Antonio Ct. of Civ. Ap.) 148

iy Wee CE. Es cde rcharedaokibeat knbeceeenin 26

In re Dalrymple, 163 N. Y. S. 238............0eeeee: 18

In re Devausney, 56 N. J. Eq. 502, 28 Atl. 459........ 18

In re Edgerly, 82 Minn. 96, 84 N. W. 653............ 20, 38

In re Hendrickson, 40 S. D. 211, 167 N. W. 172.......- 20

In re Lanwarne, 30 W. R. 759, 46 L. T. 668.........- 16

TABLE OF CASES—Conrtmvzp,

PAGE

In re Paddock, (Ct. App. N. Y.) 97 N. E.1111........ 9,18

In re Prokosch’s Guardianship, 128 Minn. 324, 151 N. W.

PETE RAAb cohen <atbbaWehsenh Oneaseacccg. 15

In re Ryan, 40 N. Y. §. ER ORR Pe a dokaien 18

In re Sall, 59 Wash. 539, 110 Pac. 32................. 20

In re Skinner’s Guardianship, 230 Iowa 1016, 300 N. W.

ET Pinner miienicbee 9 stihl big 28

In re Wilson, (Ct. of Chan. of Dela.) 82 Atl. 695...... 19, 22

In the Matter of Child, 16 N. J. eae 18, 22

Jones v. Prairie Oil and Gas Co., 273 U. 8. 195, 71 L. ed.

602... $ERORELTS ¢dAn nd Ad Ge b0s bya dmasdie c 4,13, 31

Josephberg, et al., v. Markham, (C. ©. A, 2)~152 F.

MPEEEMGhis Ph 0s 555 Std debncctece coast 20

Lackey vy. Lackey, 8 B. Monroe 107, 47 My Fs sen 0% 6

Martin v. White, (C. C. A. 9) 146 Pac. itd iinks aun 31

Matter of Perkins, 2 Johns. Ch. 124, 1 N. Y. Ch. Rep.

ME WEN 44% sends etasencyiciielin. ce 16

McCormick v. Blaine, 345 Ill. 461, 178 N. E. 195...... 20

McKinley v. Salter, (Civ. App. Tex.) 136 8. W. (2d)

iat nina No she pouiieliciabiMios ubods lat. 15, 16

McElroy v. Pegg, (C. C. A. 10) 167 F. (2d) 668...... 31

MeMullin v. Commonwealth, etc., 261 Pa. 574, 104 Atl.

OU Was Nechn chou seat habhal cea ernie 38

Minnesota v. Probate Court, 309 U. S. 270, 84 L. ed.

og CER PEE EEE REARS OB 38

Morrissey v. Rodgers, 137 Kan. 626, 21 P. (2d) 359.... 34

Neal v. Bartleson, 65 Tex. 478 .................... 20

Pennoyer vy. Neff, 95 U. 8. 714, 24 L. ed. 565........ 24, 26

Perry vy. mune, @ Wek, Tee ne 8

Perry v. Rohde, 20 Tex. 790.........0.00..0......... 3,8

er v. Raher, 150 Iowa 511, 129 N. W. 494........ 27

on.v. Leach, (Civ. App. Dallas, Tex.) 130 8. W.

WP Re ha cet winiche ca ccecs Co ore 23, 26

Re Ganse, a Lunatic, 9 Paige Ch. 416, 4 N. Y. Ch. Rep.

TL ERS lee aides. ihe aie! 17, 22

Re Petit, a Lunatic, 2 Paige 174, 2 N. Y. Ch. Rep. (L.

NE Wiis <n incbin; ¢caeerue: weet cele 16

TABLE OF CASES—Contrinvep.

PAGE

Re Russell, a Lunatic, 1 Berb. Ch. 38, 5 N. Y. Ch. Rep.

SEs Ka SU UNSAEbKA SAG 1 4 ba 64s Ks bcc anens 17

Ross v. Wilson, 95 Okl. 262, 218 Pac. 682............ 31

Sacks v. Superior Court, 79 Cal. App. (2d) 806, 180

MESS GECCU Le CELA Ge bec Saunsyieeccessces 30

Sheldon v. San Antonio, 25 Tex. Supp. 177........... 8

Shroyer v. Richmond, 15 Oh. St. Rep. 455, 465........ 15

State v. Servier, 136 La. 45, 66 So. 392.............. 37

Thomason v. McGeorge, (Com. App.) 285 S. W. 285.. 8

Wallace v. Tinney, 145 Ia. 478, 122 N. W. 936........ 20, 27

Western Life Indem. Co. v. Rupp, 235 U. 8. 261, 59 L. ed.

BG wh a Ras La Ods LACSaRSAREC HS OeeC bees Kee ss 8

Whittelsey v. Conniff, 266 Mo. 567, 182 S. W. 161, 1 A.

DRUG UE PALbcuUbawde ce cenb ea Aeas kas idiee 15

Wilson v. Fisher, (Civ. App.) 105 S. W. (2d) 304.... 8

Wootters v. Wynne, (Civ. App. Tex.) 7S. W. (2d) 940. .4, 23

8

York v. Texas, 137 U. S. 15, 34 L. ed. 604............

Text Booxs,

American Law of Guardianship by Woerner, p. 441, Sec.

cad Dip Gua PendMb ech s bebhancddeeckesdeccs ce 21

American and English Enc. of Law, Vol. 16, pp. 577-578,

Ae GC akwied bu6eeb SCs absKs nas bnevsane ve 21

I es SG EG Bc via ckncnacsceceacavectnens 21

BG I OM BE cn caseraeconecstauts| OF

SO es: WOE, SM WN, MDs ki cc ccctcdeccepecacecs 21

Coren Jurie, Vol. 12, B. USES... oon ceccccccsccsecss 6

Se OO, ROO, fine ccndchccavatsveess 12

Corpus Juris Secundum, Vol. 16, pp. 1246-1247... .4,12,13

Corpus Juris Secundum, Vol. 39, p. 36.............. 16

Conflict of Laws by Beale, Vol. 2, p. 658, Sec. 120.9.... 20

Rights, Remedies and Practice, by Lawson, Vol. 2, Sec.

848, ‘‘Guardians of Lunatics” ................+- 21

Ruling Case Law, Vol. 14, p. 570, Sec. 21............. 21

STATUTES.

Alaska Code, Sec. 911

Calif. Code of Civ. Proe. 1923, See. 1793

Code of Civil Procedure of New Y

Code of Iowa 1939, See. 12605

Kan. Gen. Stats. 1935, See. 39-241

1947 Kansas Supp. to Gen. Stats. of 1935, Sec. 59-1803

IN THE SUPREME COURT OF THE UNITED STATES.

October Term, 1948.

No. 218

HUGH HENDERSON, BY J. WILLARD GRAGG,

NEXT FRIEND, Petitioner,

SHELL OIL COMPANY, INCORPORATED, ET AL.,

Respondents.

BRIEF AND ARGUMENT OF SHELL OIL COMPANY, IN-

CORPORATED, IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI.

i eaneteeall

May It Please the Court:

Supplemental Statement of the Case.

The District Court in the judgment appealed from

found that on March 6, 1908, petitioner, Hugh Henderson,

was adjudicated to be a person of unsound mind by a court

of competent jurisdiction in Pike County, Missouri, and

that on the following day he was incarcerated in the state

insane asylum at Fulton, Missouri, where he remained for

twelve years, or until August 4, 1920 (R. 35). There was

no evidence of his restoration to sanity by a proper Mis-

souri court. While petitioner was still in the insane asylum,

to-wit, on December 18, 1918, M. L. Henderson was appoint-

ed guardian of his Texas estate (R. 35) on statutory notice

by publication (R. 52-53, 46). Some question having arisen

—_2—

as to the validity of the 1918 guardianship proceedings, on

April 17, 1939, pursuant to statutory posting notice (R.

57-58, 46), and personal notice to Hugh Henderson in Pike

County, Missouri (R. 58-59), M. L. Henderson was again

appointed guardian of the Texas estate of Hugh Henderson

on the ground he was a person of unsound mind (R. 59-61).

The two guardianship proceedings were consolidated (R.

60). Hugh Henderson came from Missouri to Texas and

was present in the courtroom at the time he was declared

insane and a guardian was appoiated in the 1939 proceed-

ings. The order appointing M. L. Henderson guardian re-

cited ‘‘came also Hugh Henderson in person’’ (R. 60, 46).

Three years later petitioner, acting through his next friend,

filed a petition for certiorari in the District Court of Clay

County, Texas (R. 1-7), wherein he was granted a trial de

novo in the guardianship proceeding (Rule 350, Texas Rules

of Civil Procedure). After hearing the evidence the Dis-

trict Court found the petitioner was a person of unsound

mind and affirmed the appointment of a guardian of his

Texas estate (R. 33-38). It is this District Court order that

was affirmed by the Ft. Worth Court of Civil Appeals (R.

71) and by the Supreme Court of Texas (R. 94-95). (All

emphasis has been supplied by us.)

Summary of Petitioner’s Argument.

Summarizing petitioner’s argument, he contends:

A. That the courts of Texas are without power to ap-

point a guardian for a nonresident person of unsound mind

and as an incident thereto to determine the fact of insan-

ity. (Specification of Error A, brief 17.)

B. That if the courts of Texas have such power the

action is in personam and personal service of process is

necessary. (Specifications of Error C and D, brief 17.)

C. That if constructive service is sufficient there must

be a prior seizure of the property. (Specification of Error

B, brief 17.)

Summary of This Respondent’s Argument.

Petitioner’s contentions are not supported by either the

facts or the law. The record does not sustain his assump-

tion of facts and every Federal question raised by him has

heretofore been decided against his contention by this Court.

PorxtI: Petitioner’s petition does not raise any Fed-

eral question because the County Court order appointing

a guardian of his Texas estate recites petitioner was pres-

ent in the county courtroom in Clay County, Texas, in 1939,

at the time he was determined to be insane and the guard-

ian of his estate was appointed (R. 60, 46). This personal

appearance was sufficient to give the County Court juris-

diction of petitioner’s person, if that be required. Likewise,

the District Court expressly found it had jurisdiction of

petitioner’s person (R. 37 ) and that finding of fact stands

unassatled in this Court. Petitioner voluntarily invoked the

jurisdiction of the District Court, wherein he was granted

a trial de novo, and his appearance in that court constituted

& general appearance and cured any lack of service in the

County Court. Glass vy. Smith, 66 Tex. 548, 2 S. W. 195;

Perry v. Rohde, 20 Tex. 730.

Pont II: Chaloner y. Sherman, 242 U. S. 455, 61 L. ed.

427, is a complete answer to petitioner’s Specification of

Error A (brief 17). In that case, this Court upheld the

constitutionality of a New York statute similar to the Texas

statute under attack and approved a determination of in-

competency and the appointment of a guardian of a non-

resident person who had not been adjudicated incompetent

—_ i

in the state of his residence. Specifications of Error C and

D (brief 17) are fully answered by Jones v. Prairie Oil and

Gas Company, 273 U. S. 195, 71 L. ed. 602, wherein this

Court held that the aypointment of a guardian on construc-

tive notice does not violate the due process provision of

the Fourteenth Amendment; and by Cunnius v. Reading

School District, 198 U. S. 458, 49 L. ed. 1125, and Blinn v.

Nelson, 222 U. S. 1, 56 L. ed. 65, wherein this Court held

the appointment of an administrator of the estate of a liv-

ing adult absentee on constructive notice does not violate

the due process provision of the Fourteenth Amendment.

In the case at bar the Texas Supreme Court held that, un-

der the laws of that state, a proceeding for the appoint-

ment of a guardian of a nonresident person of unsound

mind is an action in rem or quasi in rem (R. 92). Personal

service of process is not required in an action in rem or

quasi inrem. 16 C. J. S. 1246-1247.

Pornt III: Petitioner’s contention in Specification of

Error B (brief 17) that there must be a prior seizure of

property is answered by Wootters v. Wynne, (Civ. App.

Tex.), 7 S. W. (2d) 940 (no writ), holding that upon the

filing of a petition for the appointment of a guardian the

County Court obtains jurisdiction of the property of the

ward within the state, and also by Cunnius v. Reading School

District, 198 U. S. 458, 49 L. ed. 1125, supra, wherein this

Court overruled a similar contention made by the petitioner

in that case. Filing of the petition constituted a seizure

of the property.

ARGUMENT.

Port L

Since the courts of Texas had jurisdiction of petitioner’s

person as well as of his estate, his petition for writ of

certiorari does not raise any Federal question.

The record in this case does not even support petition-

er’s erroneous interpretation of the law. He contends that

the courts of Texas could not appoint a guardian for Hugh

Henderson’s Texas estate without a prior adjudication of

insanity in Missouri or without jurisdiction of his person

(brief 17). The record shows that not one, but both of these

facts were present in this case, and for that reason no

constitutional question is involved even under petitioner’s

mistaken theory of the law. The District Court found that

on May 6, 1908, while a resident of Pike County, Missouri,

Hugh Henderson was duly adjudicated to be a person of

unsound mind and that thereafter he spent twelve years in

the insane asylum at Fulton, Missouri (R. 35). There is

no evidence showing his restoration to sanity. There was

therefore a continuing presumption of insanity. This find-

ing of fact by the District Court is not attacked in petition-

er’s application for writ of certiorari in this Court.

Petitioner’s alternative requirement is that if there had

not been a prior adjudication the courts of Texas must have

had jurisdiction of Hugh Henderson’s person. They did.

While, as we shall hereafter show, an action for the appoint-

ment of a guardian of the estate of a nonresident person

of unsound mind is an action in rem or quasi in rem and

constructive service is sufficient, nevertheless both the Coun-

ty Court and the District Cotrt of Clay County, Texas,

actually had jurisdiction of petitioner’s person.

—-6—

a. The fact that petitioner was present in the County Court

of Clay County, Texas, at the time the guardian of his

Texas estate was appointed in 1939 was sufficient to

comply with the due process provision of the Fourteenth

Amendment, even in a personal action.

Prior to the appointment of the guardian in 1939, notice

was given by posting (R. 57-58) and another notice was

personallv served on Hugh Henderson in Missouri (R. 58-

59). We concede that this out of state notice was construc-

tive in its nature. Nevertheless, it was an effective notice,

as evidenced by the fact that Hugh Henderson came to

Texas and was present in the courtroom at the time the

County Court found he was a person of unsound mind and

appointed a guardian of his Texas estate. The order ap-

pointing the guardian states: ‘‘and came also Hugh Hender-

son in person.’’ (R. 60) This personal appearance at the

time and place of the hearing complied with the due process

provision of the Fourteenth Amendment, even to the extent

of permitting a personal judgment against him. 12 C. J.

1233. This rule has been applied to a proceeding for the

adjudication of insanity and appointment of a committee

for the person and estate of a person of unsound mind.

Lackey v. Lackey, 8 B. Monroe 107, 47 Ky. 107. In that case

no notice whatever was given to the defendant, but, in hold-

ing that his appearance was sufficient, the court said:

‘¢ * * * Where, however, the defendant is brought

in‘o court, and the inquest held in open court, neither

notice or writ is necessary. Persons of unsound mind

are under the protective care of the chancellor, whose

duty it is to watch over and guard their interest scrupu-

lously. Being in court, the presumption is, this duty

was discharged, and the court satisfied of the propriety

of holding an inquest, without any affidavit setting forth

facts to authorize the proceeding.’’ (pp. 107-108)

This rule has even been applied to an adjudication of in-

—7—

sanity for the purpose of commitment to an insane asylum.

Cook v. Dougherty, (Ct. App. D. C.) 32 F, (2d) 839.

While there are a few cases holding that personal serv-

ice is necessary even when an insane person appears at

the hearing, each of these cases is based upon the interpre-

tation of a statute which expressly required personal service.

None of them hold that notice sufficient to bring the insane

person into the courtroom at the time of the hearing does

not constitute due process of law under the F ourteenth

Amendment.

b. Under the laws of Texas petitioner’s voluntary appear-

ance in the District Court, wherein he was granted a

trial de novo, cured any lack of service of process in

the County Court.

The District Court expressly found it had jurisdiction

of petitioner’s person (R. 37). This finding was not at-

tacked in either of the state appellate courts and is not at-

tacked in this court. Petitioner filed a petition for writ of

certiorari in the District Court (R. 1-7) wherein he was

allowed a trial de novo in the guardianship proceeding.!

The filing of this petition constituted a general appearance

and, if jurisdiction of the person be necessary, the District

Court had jurisdiction of his person as well as of his estate.

Glass v. Smith, 66 Tex. 548, 2S. W. 195. Therein the Su-

preme Court of Texas said:

““* * * A court acquires jurisdiction over a plain-

tiff by his voluntary submission of a real or supposed

cause of action to its determination; and, in this re-

spect, one who institutes proceedings for the purpose

of having reviewed by another court some proceedings

1. Rule 350, Texas Rules of Civil Procedure, under heading, “Certiorari

to County Court,” provides: “The cause shall be tried de novo in the

District Court, but the issues shall be confined to the grounds of error

specified in the application for the writ. The judgment shall be certi-

fied to the County Court for bservance.”

had in an inferior court, is held thus to give to the

court, exercising appellate or revisory power, jurisdic-

tion over his person. * * *’’ (pp. 195-196)

In Perry v. Rohde, 20 Tex. 730, it was held that a de-

fendant who was not properly cited in the justice court,

but who filed a petition for certiorari in the County Court,

conferred jurisdiction on the County Court to enter a per-

sonal judgment on a trial de novo, See also Perry v. Mc-

Kinzie, 4 Tex. 154; Sheldon v. San Antonio, 25 Tex. Supp.

177; Wilson v. Fisher, (Civ. App.) 105 S. W. (2d) 304;

Heavey v. Castles, (Civ. App.) 12 S. W. (2d) 615 (writ ze-

fused) ; and Thomason v. McGeorge, (Com. App.) 285 S. W.

285.

The courts of Kentucky, like Texas, treat the appear-

ance of a party in the appellate court where a trial de novo

is had as curing lack of service of process in the courts

below, and, in Western Life Indemnity Company v. Rupp,

235 U. S. 261, 59 L. ed. 220, this Court held that such prac-

tice does not violate the due process clause of the Four-

teenth Amendment. Likewise, in York v. Texas, 137 U.S.

15, 34 L. ed. 604, this Court held that a personal judgment

rendered on a void out of state service of process was valid

where the defendant made a special appearance to attack

the court’s jurisdiction, since under the laws of Texas such

special appearance constitutes a general appearance for all

purposes and gave the court jurisdiction of defendant’s

person. It was held that such law did not violate the Four-

teenth Amendment.

Petitioner contends either (1) there must be a prior

adjudication of insanity or (2) there must be jurisdiction

of the person. We submit that even under petitioner’s er-

roneous interpretation of the law both requirements were

present and that therefore no constitutional question exists

in this case.

Port IT.

The Texas Statute which provides for the determina-

tion of the insanity of a nonresident person for the pur-

pose of appointing a guardian of his Texas estate does not

contravene the due frocess Provision of the Fourteenth

Amendment.

Petitioner contends that the courts of Texas were with-

out power to adjudicate Hugh Henderson insane as an in-

cident to the appointment of a guardian of his Texas estate

and that the statute authorizing such appointment violates

the Fourteenth Amendment. (Specification of Error A,

brief 17.)

Section 2323, Code of Civil Procedure of New York

(1898), is similar to the Texas statute which petitioner at-

tacks. The New York statute provides for the appointment

of a committee of the estate of & nonresident incompetent.

In re Paddock, (Ct. App. N. Y.) 97 N. E. 1111, involved the

constitutionality of this statute. In answer to the following

certified question:

**(1) Is Section 2323 of the Code of Civil Pro-

cedure violative of the state or Federal Constitution

in so far as it permits the maintenance of an incompe-

tency proceeding against a nonresident of the state

having property situate in the state?”’

the Court of Appeals of New York held that the statute

did not violate either the State or the Federal Constitution.

The constitutionality of this identical statute was likewise

sustained by this Court in Chaloner vy. Sherman, 242 U. S.

455, 61 L. ed. 427. Chaloner was a resident of Virginia and

had not been adjudicated incompetent by a court of that

state, but nevertheless this Court in holding that the courts

of New York had jurisdiction to determine the insanity of

—10—

this nonresident for the purpose of appointing a commit-

tee of his estate said:

‘**As the plaintiff had notice and opportunity to be

heard at each stage of these proceedings, the essential

elements of due process of law were fully met, and the

court had jurisdiction to enter that order. * * *’’ (p. 461)

There is no substantial difference in the facts invoived

in the Chaloner case and in the case at bar, except that

there had been no prior adjudication by a Virginia court

in the Chaloner case, whereas a Missouri court had de-

clared Hugh Henderson insane in 1908 (R. 35). Chaloner

was in the State of New York at the time he was adjudicated

incompetent and a committee appointed and was personally

served, although such personal service was not required

by the statute. Likewise, Hugh Henderson was personally

served in Missouri, although such personal service was not

required by the statute. Concedediy, this out of state serv-

ice on Hugh Henderson was effective only as a constructive

service. However, it had the desired result since it brought

Hugh Henderson to Texas and he was present in the court-

room at the time he was found to be insane and the guardian

of his Texas estate was appointed. (R. 60) On the other

hand, Chaloner was not present in the courtroom when he

was adjudicated insane and the committee was appointed

for his estate. The Chaloner case does not discuss the ques-

tion of whether constructive service is sufficient in a guard-

ianship proceeding. We will submit other authorities on

that point. However, the Chaloner case does expressly hold

that a statute similar to Article 4132, Revised Texas Stat-

utes, providing for the adjudication of insanity of a nonresi-

dent person and the appointment of a guardian of his Texas

estate, does not violate the Federal Constitution.

—

a. A proceeding brought for the appointment of a guard-

ian of the Texas estate of a nonresident person of un-

sound mind is an action in rem or quasi in rem and

constructive service constitutes due Process of law.

Petitioner’s primary contention appears to be that the

Courts of Texas could not appoint a guardian for his Texas

estate without obtaining personal service upon him (brief

17). The mere statement of this proposition reveals its

impracticability. Being a nonresident, it was impossible to

obtain personal service upon him in the State of Texas.

Under petitioner’s theory his Texas land must remain with-

out a manager of any type. Petitioner being insane, he

could not make contracts relating thereto; his Missouri

guardian had no jurisdiction outside the State of Missour: ;

and any process issued from a Texas court is ineffective

outside that state’s borders. This means that during the

past 30 years Hugh Henderson’s Texas land could not have

been leased by anyone for agricultural or any other purpose.

This cannot be the law, and, as we shall now show, it is not

the law.

Herein we shall assume, arguendo, there was no prior

adjudication of insanity in Missouri and no jurisdiction of

Petitioner’s person by either the County Court or the Dis-

trict Court of Clay County, Texas. Petitioner’s entire argu-

ment is based on the theory that a proceeding for the ap-

pointment of a guardian is an insanity hearing. Such is

not the case. While insanity is one of the facts which must

be determined, the primary purpose of the action is to ap-

point a guardian of the estate of the nonresident person of

unsound mind,

The Court of Civil Appeals, in its opinion in this case

(R. 71) 202 S. W. (2d) 492, very concisely states the basic

error in petitioner’s argument in the following language:

—12—

‘The basic error in appellant’s contentions, both

as to the jurisdiction of the Texas court to appoint a

guardian and as to the question of personal service on

Hugh Henderson, is the failure to treat the guardian-

ship as a proceeding in rem rather than as a proceed-

ing in personam. The primary purpose of the guardian-

ship proceeding was not to have the County Court of

Clay County adjudge the status of the nonresident

Hugh Henderson, but to have that court exercise con-

trol of property lying within its jurisdiction.’’ (R. 77)

In its opinion in this present case the Supreme Court of

Texas said:

**It is our further view that due process within the

meaning of the 14th Amendment to the Constitution of

the United States was observed in the proceeding. Jones

v. Pairie Ou Co., 273 U. S. 195; McKinley v. Salter

(Civ. App.), 186 S. W. (2d) 615 (writ dismissed, cor-

rect judgment). Such a proceeding is one in rem or

quasi in rem. McCormick v. Blaine, 178 N. E. 195, 77

A. L. R. 1215; Re Sall, 59 Wash. 539, 140 Am. St. Rep.

885; Wallace v. Tinney, (Iowa) 122 N. W. 936. Ina

proceeding of that nature the court may acquire juris-

diction by means of .bstituted or constructive service.

Pennoyer v. Neff, 95 U. S. 714; Re Sall, supra; case

note 77 A. L. R. 1227. A contrary holding would have

the effect of depriving the courts of this State of con-

trol over lands situated within its borders.’’ (R. 92)

The question of whether or not in Texas the appoint-

ment of a guardian for a nonresident person of unsound

mind is an im rem or quasi in rem action is important for

the reason that personal service of process is not required

in an action in rem or quasi in rem, 34 C, J. 1172; 42 Am.

~ Jur. 71.

‘«* * * « valid judgment in rem, or quasi in rem, may

be rendered which will be binding on property within

the jurisdiction of the court without personal service of

—13—

process, substituted or constructive service being suf-

ficient to constitute due process im such cases, * * *??

(16 C. J. S. 1246-7)

Since the guardianship Proceedings concerned petitioner’s

Texas property and nothing more, under the laws of Texas

such proceedings were in rem or quasi in rem and construc-

tive service complied with the due process provision of

the Fourteenth Amendment.

In Jones v. Prairie Oil & Gas Company, 273 U. 8. 195,

71 L. ed. 602, in holding that the appointment of a guardian

for a minor on constructive notice did not violate the due

process provision of the Fourteenth Amendment, this Court

said;

““* * * The Oklahoma statutes only require such

notice as the judge deems reasonable to be given to the

relatives residing in the county and to any person hav-

ing the care of such minor. Okla. Comp. Stat. 1921,

Sec. 1431. In the circumstances stated, unqualified, the

requirement of notice is merely formal, if it exists.

Lester v, Smith, 83 Okl. 143, 200 Pac. 780; Gibson’s

Appeal, 154 Mass, 378, 379-381, 28 N. E. 296, Certainly

there is nothing in the Constitution of the United States

that requires it, * * *» (p. 198)

Petitioner attempts to distinguish this case on the ground

that it involved the appointment of a guardian of an ad-

mitted minor, Likewise, the case at bar involves the ap-

pointment of an admitted insane person, but the question

now under discussion is not whether a particular person is

an admitted minor or an admitted insane person, but what

type of notice is required to appoint a guardian. The Four-

teenth Amendment applies to minors as well as to adults.

If personal service is necessary before appointing a guard-

ian for a person of unsound mind, then we submit that per-

sonal service is necessary before appointing a guardian of

a minor. As was said by the Court of Appeals of Kentucky

in Hundley v. Sumrall, 144 Ky. 73, 137 S. W. 842:

‘*We do not see that the case of a lunatic can be

distinguished from that of an infant.’’ (2 c. 844)

Petitioner makes no attempt to distinguish Cumnius v.

Reading School District, 198 U. S. 458, 49 L. ed. 1120,

and Blinn v. Nelson, 222 U. S. 1, 56 L. ed. 65. These two

cases did not involve minors. Each case involved an

adult nonresident, but nevertheless this Court held that the

appointment of an administrator for the estate of these liv-

ing adult absentees on publication notice did not violate the

Fourteenth Amendment. Cunnius, who had resided in Cali-

fornia for more than seven years, returned to Pennsylvania

and’ sued the Reading School District to recover money

paid by it to the administrator. In holding that publication

notice was sufficient and that the statute did not violate

the Fourteenth Amendment, this Court said:

‘# * * As it cannot be denied that, in substance,

the Pennsylvania statute is a special proceeding for

the administration of the estates of absentees, distinct

from the general law of that state providing for the

settlement of the estates of deceased persons, and as,

by the express terms of the statute, jurisdiction was

conferred upon the proper court to grant the adminis-

tration, it follows that the Supreme Court of Pennsyl-

vania did not deprive the plaintiff in error of due proc-

ess of law within the intendment of the 14th Amend-

ment. * * * (p. 476)

«<* * * Let it be further conceded, as we also think

is essential, that a state law which did not provide ade-

quate notice as prerequisite to the proceedings for the

administration of the estate of an absentee would also

be repugnant to the 14th Amendment. * * * So far as

—1§g—

the notices which it directs to be issued, we think they

were reasonable. * * *’’ (p. 477)

The notices which this Court held ‘“‘were reasonable’’ were

publication notices. See also McK inley v. Salter, (Civ. App.)

136 S. W. (2d) 615, (writ dismissed—judgment correct)

wherein it was held the appointment of a temporary guard-

ian without notice did not violate the Fourteenth Amend-

ment. This Court dismissed the appeal ‘‘for want of a sub-

stantial Federal question.”? 312 U. S. 659, 85 L. ed. 1106.

We do not see how petitioner can contend an act pro-

viding for the appointment of a guardian for a nonresident

sane person on constructive notice is valid but that a differ-

ent rule is applicable to a nonresident insane person. We

respectfully submit that since the appointment of a guard-

ian of the estate of a minor or an absentee adult sane per-

son on constructive notice does not violate the Fourteenth

Amendment, the appointment of a guardian of the estate

of a nonresident person of unsound mind on constructive

service is constitutional. The cases which we shall hereafter

discuss so hold.

Our discussion is limited to guardianship of estates

and cases relating to guardianships of persons are not

apropos. The reasoning back of all cases providing for the

appointment of a guardian of the estate of a minor or of a

person of unsound mind on constructive notice is that the

appointment of a guardian is not an adversary proceeding

but partakes of the nature of an action by the state in its

character of parens patriae; that it does not take the ward’s

property, but uses it for his benefit. In re Prokosch’s

Guardianship, (1915) 128 Minn. 324, 151 N. W. 130; Shro-

yer v. Richmond, (1866) 16 Oh. St. Rep. 455, 465; Hughes

v. Jones, (1899) 116 N. Y. 67, 22 N. E. 446; Whittelsey v.

aa

Conniff, 266 Mo. 567, 182 S. W. 161, 1 A. L. R.913; McKinley

v. Salter, (Civ. App. Tex.) 136 S. W. (2d) 615 (writ dis-

missed—judgment correct) ; 39 C. J. S. 36.

In 1751, nearly 200 years ago, this question was first

submitted to the courts of England, and it was held that a

commission of lunacy could issue against a person residing

in France. Ex Parte Southcote, 1 Amb. 109, 27 Eng. Rep. 71.

While the type of notice is not shown, it necessarily was

constructive. Such was the statuts of the common law when

it became the basic law of the United States. This case has

been cited innumerable times by the courts of this country.

It has also been followed by the English courts. In re Lan-

warne, 30 W. R. 759, 46 L. T. 668, is another English case

involving the lunacy of an alleged lunatic residiag abroad.

The court made an order dispensing with the presence of

the lunatic and notice was given by a registered letter.

The first reported case we have been able to find in the

United States on this point was decided in 1816. Matter of

Perkins, 2 Johns. Ch. 124, 1 N. Y. Ch. Rep. (L. ed.) 317.

Therein the New York court stated:

ss * * Tt is, at least, sufficient to warrant the issu-

ing a commission; and there is no doubt, from the case

Ez parte Southcote, Amb. 109, that a commission of

lunacy may issue against a person resident abroad.”’

(2 ¢. 317)

The Perkins case involved a person who had already been

adjudicated insane in the state of his residence, but the

New York court held it could not recognize that adjudication

but would have to make its own.

The next case in point of time was decided in 1830. Re

Petit, a Lunatic, 2 Paige 174, 2 N. Y. Ch. Rep. (L. ed) 861.

The alleged lunatic was a resident of Connecticut and

there had been no prior adjudication of insanity, The court

—17—

ordered that a commission to determine the question of

insanity and necessity for a committee of his New York es-

tate should issue in the New York county closest to his Con-

necticut residence, on out of state notice.

The Perkins and Petit cases were followed in 1842 by

Re Ganse, a Lunatic, 9 Paige Ch, 416, 4 N. Y. Ch. Rep. (L.

ed) 756. In this case the exact whereabouts of the alleged

lunatic was unknown and the question before the court was

whether it could issue a commission of lunacy for the pur-

pose of appointing a committee of his estate without some

evidence that the lunatic was within the jurisdiction of the

court. In determining that it could the court said:

“«“* * * It was at one time questioned whether the

Lord Chancellor of England could issue a commission

where the lunatic was abroad. But since the decision

of Lord Hardwicke, in Southcote’s case, 2 Ves. Sr. 402,

there can be no doubt of the right of the chancellor to

issue a commission, where the lunatic has lands within

his jurisdiction, although the lunatic is himself domi-

ciled abroad, And the cases of Perkins (2 Johns. Ch.

124) and of Petit (2 Paige 174) established the same

principle here. * * *”» (1 ¢. 757)

In determining that notice to the lunatic could be given

by mail, the court said:

“A commission must issue accordingly, as prayed

in the petition, and must be executed in the town of

Fishkill; * * * The commissioners must also direct a

similar notice to be transmitted to Ganse himself,

through the postoffice, directed to him at Batavia, at

least twenty days previous to the time when the com-

mission is to be executed.’? (1 ¢. 757)

Re Russell, a Lunatic, (1845) 1 Barb. Ch. 38, 5 N. Y.

Ch. Rep. (L. ed.) 290, was another action to determine

lunacy and appoint a committee, The court held that while

reasonable notice should be given personal service upon the

alleged lunatic was not necessary. (1. c, 291.) There are

many more New York cases of a similar nature, the more

recent of which had under consideration a nonresident stat-

ute similar to the Texas statute. In re Dalrymple, 163 N.

Y. S. 233, and In re Ryan, (1943) 40 N. Y. S. (2d) 594. In

re Paddock, (Ct. App. N. Y., 1912) 97 N. E. 1111, attacked

the nonresident statute on the ground that it violated the

State and Federal Constitutions. The constitutionality of

the statute was upheld.

New Jersey likewise followed the common law. In the

Matter of Child, 16 N. J. Eq. 498; In re Devausney, 56 N.

J. Eq. 502, 28 Atl. 459. In the Devausney case the jurisdic-

tion of the court to institute proceedings de lunatico in-

quirendo was challenged on the ground that, although the

lunatic had real and personal estate in New Jersey, she

was a citizen and resident of New York. (1 «. 459) This

case has an excellent discussion of the early cases in this

country and also of the English case of Ex parte South-

cote, supra, After discussing these cases the court said:

‘“‘This examination of th: law and case, in my

judgment, demonstrates that Jn re Southcote is an au-

thority for issuing a commission when the alleged luna-

tic is nonresident, if he or she owns an estate within

the jurisdiction. * * *’’ (2c. 460)

The New Jersey cases are of special significance for

the reason that the New Jersey nonresident statute pro-

vides that prior to the appointment of a New Jersey guard-

ian by the Orphans Court there must be an adjudication of

insanity in the state of the insane person’s residence; but

nevertheless the above cases hold that the Court of Chancery

has an inherent power to protect the property of insane per-

sons and, in those cases where a nonresident has not been

declared insane in the state of his residence, a court of

chancery may intervene to determine such insanity and ap-

point a guardian of his estate.

The courts of Delaware likewise have passed upon

this question. In re Wilson, (Ct. of Chan. of Dela., 1912)

82 Atl. 695, adjudicated a nonresident to be a person of un-

sound mind and appointed a guardian of his estate on out

of state service. The court said:

“It is clearly settled that a court of chancery has,

independent of statute, jurisdiction to issue a commis-

sion de lunatico inquirendo respecting a person who

has real estate within the jurisdiction of the court,

though he be a nonresident, * * *»? (1 c. 696)

* * * o & * * Sd

“So also as to the matter of notice to the alleged

lunatic, which, of course, is very important, Inasmuch

as there is no rule or statute prescribing the form or

method of giving notice it can be given in such way that

the chancellor will be sure that the supposed lunatic, if

in such condition that a notice will be proper and use-

ful, has knowledge of the proceeding, though living in

another jurisdiction.’’ (2 e. 696)

The Supreme Court of Washington had this question

before it in Coleman v. Cravens, et al., (1905) 41 Wash. >

82 Pac, 1005, and, in sustaining a determination of insanity

and the appointment of a guardian of the estate of a non-

resident on publication notice, the court said:

““* * * This application falls under Section 5 of

said act, and the notice by publication is manifestly the

only notice required in such cases.° * °”? (1 © 1006)

In each of the cases cited below it was held that a non-

resident could be determined to be insane for the purpose

f appointing a guardian of his estate, In many cases the

a

—20—

type of notice is shown, but even where not shown it had to

be constructive, since in each case the insane person was

outside the state and personal service of process was im-

possible. In re Sall, 59 Wash. 539, 110 Pac. 32 (publication

notice) ; Hundley v. Sumrall, et al., 144 Ky. 73, 137 S. W.

842 (notice by mail) ; McCormick v. Blaine, 345 Ill. 461, 178

N. E. 195 (notice by publication and mailing); Wallace v.

Tinney, 145 Ia. 478, 122 N. W. 936 (mo notice necessary) ;

In re Edgerly, 82 Minn. 96, 84 N. W. 653 (notice by mail-

ing); Appeal of Karmany, 242 Pa. 300, 89 Atl. 84; Griffin

v. Larwell, 148 Mich. 516, 111 N. W. 1089; In re Hendrick-

son, 40 S. D. 211, 167 N. W. 172 (constructive notice) ; Crohn

v. Modern Woodman of America, 145 Mo. App. 158, 129 S.

W. 1069 (Secs. 386 and 482 Mo. Stats. Ann., require ‘‘rea-

sonable notice’’ in such cases) ; Coker v. Gay, 154 Ga. 337,

114 S. E. 217; Henderson v. Shell Oil Company, Incorpo-

rated, (Tex. Sup.) 202 S. W. (2d) 492 (R. 89, 92) (construc-

tive notice is sufficient); Finley v. Hartsook, (C. C. A. 5)

158 F. (2d) 618 (im rem action, Personal service not neces-

sary) ; Josephberg, et al., v. Markham, (C. C. A. 2) 152 F.

(2d) 644 (living in Italy). Even before the passage of the

statute providing for the appointment of guardians for non-

residents the Supreme Court of Texas held that under the

Constitution the courts of that state had jurisdiction to ap-

point such guardians. Neal v. Bartleson, 65 Tex. 478.

‘‘Insanity Is Not a Status. If insanity is found at

the domicile it does not affect the condition of the per-

son in another state; if he is to be treated as insane in

the.other state, he must there be found insane. So a

person found sane at his domicile may be found insane

in another state. A person may be declared insane in a

state not his domicile, and there put under guardian-

ship.’’? Conflict of Laws by Beale, Vol. 2, page 658,

Sec. 120.9.

‘““* * * But the power of chancery courts, in the

absence of statutory provisions on the subject, to in-

stitute proceedings de lunatico inquirendo in the case of

nonresident persons of unsound mind, and to appoint

guardians to them after inquisition, is well established

in England and America, provided that such person has

real or personal estate within the jurisdiction of the

court. * * * No committee can be appointed of the per-

son of a non-resident, but a committee may be ap-

pointed to administer a non-resident’s property.’? The

American Law of Guardianship by Woerner, p. 441,

Sec. 134,

See also: Rights, Remedies and Practice, by Lawson, Vol.

2, Sec. 848, ‘‘Guardians of Lunatics,’”? and American and

English Ene. of Law, Vol. 16, pp. 577-578, See, 9.

On the question of whether it first must be adjudicated

that a nonresident is incompetent, the author, in 14 R. C. L.

570, Sec. 21, says:

“** * * So it has been declared that while the fact

of the insanity of a non-resident for the protection of

whose property the appointment of a guardian is

sought must be judicially determined, this may be done

on the hearing of the application for the appointment

of the guardian, and need not be determined in an in-

dependent proceeding.”’

See also, 32 C. J. 653, and 25 Am. Jur. 21,

By case law or by statutes most of our states have fol-

lowed the common law and provide for the appointment of

guardians of the estates of nonresident persons of unsound

mind upon constructive notice, and, as an incident thereto,

for a determination of insanity. In no case has the highest

court of any state held that such appointment could not be

made on constructive notice under proper statutory author-

ity, and several courts have held the insanity of a non-

- 22—

resident can be determined and a guardian appointed on

constructive notice even in the absence of express statutory

authority. Ex parte Southcote, (England) 1 Amb. 109; Re

Ganse, a Lunatic, 9 Paige 416, 4 N. Y. Ch. Rep. (L. ed.) 756;

In the Matter of Child, 16 N. J. Eq. 498; In re Wilson, 9

Del. Ch. 332, 82 Atl. 695; and Coker v. Gay, 154 Ga. 337,

114 S. E. 217.

In his argument petitioner cites cases from eleven dif-

ferent jurisdictions. Nine of these jurisdictions have non-

resident statutes similar to Texas. These statutes provide

for the appointment of guardians or custodians of the

estates of nonresident persons of unsound mind without

requiring personal service of process! The two states that

do not have a statute similar to the Texas nonresident stat-

ute are Louisiana and West Virginia, and the cases cited

from these states are not in point on the constitutional ques-

tion here involved. Most states have two sets of guardian-

ship statutes—one set relating to guardians of resident

minors and persons of unsound mind, which expressly re-

quire personal service of process; and another set relating

to the appointment of guardians of the estates of nonresi-

dent minors and persons of unsound mind, which statutes

provide for constructive notice. Not a single nonresident

statute of any state in the United States provides for per-

sonal service. Six of the cases cited by petitioner involve

appointments of guardians for residents under statutes ez-

pressly providing for personal service of process. These

cases merely hold that where required by statute such per-

sonal service is necessary. Only two of petitioner’s cases

involve the appointment of a guardian of the estate of a

1. Article 4132, Tez. Rev. Civ. Stat.; Code of Iowa 1939, Sec. 12605;

Cal. Code of Civ. Procedure 1923, Sec. 1793; 58 Okla. Stats. 1941, Sec.

861; Alaska Code, Sec. 911; Sec. 59-1803, 1947 Supp. to Gen. Stats. of

Kansas 1935; Pa, Stats. 1920, Sec. 14867; Minn. Stats. 1941, Sec. 525.55;

District of Columbia—Cooper v. Burton, 127 F. (2d) 741 (2 c. 742).

a

—23—

nonresident person of unsound mind. Those two cases are

Redmon v. Leach, (Civ, App. Dallas, Tex.) 130 S. W. (2d)

873, and Grinbaum v. Superior Court, 192 Cal. 548, 221

Pac. 635. Redmon vy. Leach was repudiated by the Supreme

Court of Texas in the case at bar. The California nonresi-

dent statute involved in Grinbaum vy. Superior Court pro-

vided for such notice as the “‘court deems reasonable.’’ The

court merely held that such statute required some type of

notice and that the appointment of a guardian without any

notice whatever was invalid. That case is not applicable

here because the Supreme Court of Texas has held that

notice in the case at bar was properly given under the Texas

statutes. Petitioner’s cases are more fully discussed in an

appendix to this brief.

Pornt ITI.

Upon the filing of the petition for the appointment of

a@ guardian the County Court of Clay County, Texas, ac-

quired jurisdiction of petitioner’s Texas estate.

Under Specification of Error B (brief 17) petitioner

asserts that for a constructive service to be sufficient there

must be a prior seizure of his property. Petitioner over-

looks the fact that upon the filing of the petition for guard-

tanship the County Court obtained jurisdiction of petition-

er’s property within the State of Texas. Wootters vy. Wynne,

(Civ. App. Tex.) 7S. W. (2d) 940 (no writ), involved an

application for appointment of a guardian for a person of

unsound mind. After the application had been filed, but

before it had been passed upon, the County Court of Hous-

ton County declared Eastham insane and appointed a guard-

ian on a complaint filed subsequent to the filing of the com-

plaint in Walker County. In holding that the County Court

of Walker County, in which the first complaint was filed,

—24—

acquired jurisdiction of the insane person’s estate upon the

filing of such complaint, the court said:

‘*The purpose of Mrs. Jones’ application was to

subject the property of W. A. Eastham’s estate to the

custody and control of the probate court of Walker

County, and its jurisdiction attached when such applt-

cation was filed,* * * The Walker County Court hav-

ing first acquired jurisdiction of the property belonging

to the estate of W. A. Eastham by the due commence-

ment of a proceeding, which it was empowered to ad-

judicate, and which sought to have the court seize and

exercise dominion over such property, it was entitled to

exercise its jurisdiction without interference from any

other court of co-ordinate jurisdiction, * * *.’’ (2 ¢. 941)

Identical contentions were made by the petitioner in

Cunnius v. Reading School District, 198 U. S. 458, 49 L. ed.

1125, discussed above. In that case it was contended that

under Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565, first,

personal service was necessary before appointing an admin-

istrator for a living absentee, and, second, the publication

notice provided for by the statute was insufficient under the

Fourteenth Amendment: ‘‘* * * for the reason that there

was no seizure of plaintiff’s property into the custody of

the court prior to the rendition of the decree * * *.’? Jt was

further contended that, ‘‘It follows, therefore, that for want

of personal notice to the plaintiff, and in the absence of the

required seizure of her property, the proceeding under the

Act of 1885 was void as to her, * * *.’’ (2. 49 L. ed. 1126.)

In overruling both these contentions and in holding that

the publication notices provided for by the statute were

sufficient, this Court said:

*** © © So far as the notices which it directs to be

issued, we think they were reasonable. * * *’’ (p. 477)

—25—

Conclusion.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Gro. W. CunnincHam,

Box 1191,

Tulsa 2, Oklahoma,

Attorney for Respondent, Shell

Oil Company, Incorporated.

Of Counsel:

Jno. E. Kizcors,

510 Gulf States Building,

Dallas 1, Texas;

Jesse M. Davis,

Box 1191,

Tulsa 2, Oklahoma.

—26—

APPENDIX.

Petitioner’s Authorities Do Not Support His

Contention.

Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565, merely

holds that a personal judgment by an attorney for services

rendered could not be obtained against a nonresident upon

constructive service of summons by publication in an action

where he did not appear. Therein this Court expressly rec-

ognizes the validity of constructive service of process in

actions in rem or quasi in rem. What constitutes seizure of

property is discussed under Point III, supra.

Redmon v. Leach, (Civ. App. Dallas) 130 S. W. (2d)

873: In his brief petitioner asserts that the Supreme Court

of Texas expressly approved the holding of the Court of

Civil Appeals in Redmon v. Leach, but such is not the case.

Regardless of whether the Texas statute is or is not consti-

tutional, the correct result was reached in the Redmon case,

since an attempt was being made to deprive Redmon, a

sane person, of her property by having her declared insane.

In addition to the constitutional question the court found

the posted notice was insufficient and that in fact Redmon

was not a person of unsound mind. The Supreme Court of

Texas in denying a writ of error did not approve the ques-

tions of law decided by the Court of Civil Appeals, but

merely held that it had rendered a correct judgment. The

San Antonio Court of Civil Appeals in Jn re Burges’ Estate,

148 S. W. (2d) 903 (no writ), and the Fort Worth Court

of Civil Appeals in the case at bar, Hugh Henderson v.

Shell Oil Company, Incorporated, et al., 202 S. W. (2d) 492

(R. 72, 76), each refused to follow the Redmon case and

the Supreme Court of Texas likewise refused to follow the

Redmon case in the case at bar. (R. 89)

[APPENnrx]

The type of notice required in a guardianship proceed-

ing is entirely dependent upon the statute under considera-

tion. In nearly every state there are two sets of statutes.

One set relates to the appointment of a guardian for a

resident person of unsound mind, and for the most part

these statutes require personal service of process upon the

alleged insane person. The other set of statutes relates to

the appointment of a guardian for a nonresident minor or

person of unsound mind, and in some instances for a resi-

dent minor or person who is absent from the state. Without

exception these statutes either do not require notice or pro-

vide for constructive notice. The reason is obvious. Con-

structive service is a creature of necessity and, except in

rare instances, it would be impossible to procure personal

service on a nonresident person of unsound mind. In con-

sidering each case it must be determined whether the stat-

ute being construed expressly provides for personal service

of process or permits constructive notice.

Many of the cases cited by petitioner involve cases con-

struing statutes which expressly require personal service.

Raher v. Raher, 150 Ia. 511, 129 N. W. 494, upon which peti-

tioner so strongly relies, is this type of case. Jt construes a

resident statute which expressly requires personal service.

Under that statute an attempt was made to obtain personal

service on a resident while out of the state. The court held

such service was not authorized by the statute. On the other

hand, Wallace v. Tinney, (1909) 145 Ia. 478, 122 N. W. 936,

involved the Iowa nonresident statute. Therein the Supreme

Court of Iowa, in approving the appointment of a guardian

of the Iowa estate of a resident of Oregon who was of un-

sound mind, held that such action was in rem and that such

appointment could be made without notice. The court said:

‘“«* * * The exhibits referred to are the application

—28—

(ApPrNnp1x]

for appointment, the report of the guardian, and the

order of court thereon, and the order appointing the

guardian. These do not show that no notice was given.

But we do not think that either the statute or any rule

of constitutional law requires the giving of notice of

an application for the appointment of a guardian of

the property of a nonresident. Surely our statute does

not require any notice, and, if it be required, it must

be in virtue of some general rule of law or constitu-

tional requirement. Doubtless no guardian may be ap-

pointed for the person of another without notice, and

this is what the cases for appellant seem to hold. * * *”’

(1 ¢. 938)

Petitioner attempts to avoid Wallace v. Tinney on the

ground the opinion in the Wallace case was prior to the

opinion in the Raher case. In making this argument peti-

tioner overlooks these facts: (1) The cases construe two

separate and distinct statutes—the resident statute, which

requires personal service, and the nonresident statute, which

does not require personal service, and (2) the personnel

of the court handing down the decision in the Wallace case

was identical with the personnel of the court handing down

the decision in the Raher case. The same Iowa statute cov-

ers both nonresident minors and persons of unsound mind

and as late as 1941 the Supreme Court of Iowa again had

this nonresident statute before it in approving the appoint-

ment of a guardian for a minor resident of Texas who was

in Nebraska when the application for guardianship was

made. In re Skinner’s Guardianship, 230 Ia. 1016, 300 N.

W. 1. While the type of service is not shown, it had to

be out of state. In this case the court held the lower court

was without jurisdiction to appoint a guardian of the non-

resident’s person but affirmed the appointment of a guard-

ian of his estate. Both the statute and case law of Iowa

refute petitioner’s contention.

—

[ APPenprx]}

Grinbaum vy. Superior Court, 192 Cal. 528, 221 Pac.

635: Petitioner’s quotation from this case must have been

taken from some digest, since we fail to find all of his quo-

tation in the opinion as reported in the Pacific Reporter.

A part of it will be found in column 1, page 646. Although

the last sentence of this quotation is shown as a part of

the previous paragraph, it is not so shown in the opinion.

This case involved the appointment of a guardian for an

insane resident of California who was in Germany at the

time. No notice of any kind was given. In stating that it

was not necessary to decide whether the action was in per-

sonam or in rem and whether a substitute notice would be

sufficient, the Supreme Court of California said:

“** * * In so doing we do not deem it necessary to

determine whether proceedings for the appointment of

guardians of the estates of insane or incompetent per-

Sons are proceedings in personam or in mms? <9,

the question here is not as to the form or sufficiency

of the notice, but is as to whether or not any notice

whatsoever was given, or is to be presumed to have

been given;***.? (1¢, 641)

A reference to that portion of the opinion quoted in peti-

tioner’s brief reveals that the court was discussing two

different sections of the statute. In the first part of the

quotation it discusses Section 1763, which provides for per-

sonal service of notice where residents within the state are

involved. The court then states:

“Section 1793 of the Code of Civil Procedure pro-

vides for the appointment of guardians of insane or

incompetent persons who reside or are without the

State of California, * * *,” (1 ©. 640)

That is the reason the court in the quotation cited in peti-

tioner’s brief states that personal service is required under

[ APPENDIX}

Section 1763 (the resident statute), but that ‘‘a similar

strictitude cannot be practicably enforced in the case of

alleged insane or incompetent persons who reside without

or are absent from the state lies in the nature of things,

but does not in any degree diminish the importance of giv-

ing the notice required by Section 1793 of the Code of Civil

Procedure.’’ (1 c. 646) The notice required by Section 1793

ts not personal notice, but is such notice as the ‘‘court deems

reasonable.’’ In other words, the Grinbaum case holds that

by statute personal service is necessary where a resident

within the state is involved, but that where a resident is

absent from the state or a nonresident is involved, ‘‘a sim-

ilar strictitude cannot be practicably enforced’’ (that is,

personal service) and therefore Section 1793 is applicable.

Section 1793 is shown in full in column 1, page 640 of the

Grinbaum case. This section applies alike to the appoint-

ment of a guardian for a nonresident minor or insane per-

son, and the same notice is required in each case. In Groni-

fer v. Puymirol, 19 Cal. 629, the Supreme Court of Cali-

fornia approved the appointment of a guardian for an in-

fant citizen and resident of France, and held that service

by publication for five days complied with the nonresident

statute. Both the statute and case law of California refute

petitioner’s contention.

In re Allie Walters Sacks, (Cal.) 190 P. (2d) 602, and

Sacks v. Superior Court, 79 Cal. App. (2d) 806, 180 P. (2d)

922: Petitioner in his brief erroneously states that these

two cases hold that an insanity hearing based on foreign

service and publication service is insufficient and the entire

proceedings are null and void because of lack of personal

service (brief 25). Neither case so held. The same incom-

petent was involved in each case. These cases involved the

resident statute above referred to.

( APPENDIX]

McElroy v. Pegg, (C. C. A. 10) 167 F. (2d) 668: This

is a case similar to the Towa case. It involves a resident

statute expressly providing for personal service. It will be

noted from the quotation in petitioner’s brief that 58 Okla.

Stats. 1941, See. 851, expressly provides that where a resi-

dent is involved notice of the time and place of the hearing

for the appointment of a guardian for a person of unsound

mind must be personally served. Under such statute a pro-

ceeding had without such personal service is invalid. The

Oklahoma cases cited in the quotation from the McElroy

case all merely hold that under this statute personal service

is necessary. On the other hand 58 Okl. Stats. 1941, See.

861, relates to the appointment of guardians for nonresident

minors and persons of unsound mind, and provides for

notice ‘‘in such manner as the judge orders.’’ Again we

find that in Oklahoma, like in California and Iowa, personal

service is required where a resident within the state is in-

volved, but that where a nonresident is involved construct-

ive service may be had in such manner as the judge orders.

While Section 861 has not been construed by the Oklahoma

courts, Section 761, which relates to the appointment of

guardians of minors, provides for ‘‘such notice as he (the

judge) deems reasonable.”’ Under this section it has been

held that personal notice is not necessary, but only such

notice as the county judge deems reasonable. Jones v. Prai-

rie Oil € Gas Co., 273 U. §. 195, 45 Sup. Ct. 338, 71 L. ed.

602, supra; Hawkins v. Tiger, 163 Okl. 55, 20 P. (2d) 578;

Ross v. Wilson, 95 Ok. 262, 218 Pac. 682,

Martin v. White, (C. C. A. 9) 146 Pac. 461: Petition-

er’s quotation from the opinion in this case is confusing.

We are unable to find the first paragraph of his quotation

anywhere in the opinion. The second paragraph appears

to be the third paragraph of the syllabus in the Federal

—32—

[ APPENDIX]

Reporter, and the third paragraph appears to be the fourth

paragraph of the syllabus in the Federal Reporter. It is

probable that petitioner merely intended the first paragraph

as a statement of the facts in the case and that the printer

erroneously quoted it. Again we find petitioner confusing

the statute applicable to residents with the statute appli-

cable to nonresidents. Section 896 cited in the last para-

graph of petitioner’s quotation is quoted in the opinion of

the court (p. 463). This section provides for the appoint-

ment of a guardian for a resident insane person after ‘‘no-

tice to be given to the supposed insane person of the time

and place appointed for hearing the case, not less than

ten days before the time so appointed; * * *.’’ (p. 463)

In its opinion the court said:

‘‘From a careful examination of the various sec-

tions of the Code of Alaska, it plainly appears that the

validity of the proceedings had in the present case be-

fore the commissioner must be determined by the pro-

visions of Sections 895 and 896. * * *’’ (p. 464),

and then held:

‘<* * * There was no notice given to White in com-

pliance with the provisions of the statute under which

the commissioner acted. The ‘public notice’ of the time

and place of the hearing in a newspaper, or by posting

a similar notice in three public places in the town of

Fairbanks, was not such a notice as the statute re-

quires, * * *’’ (p. 465)

The only question before the court in the Martin case was

whether the personal service provided for in the case of a

resident insane person had been given. On the other hand,

Section 911 of the Alaska Code, quoted in full at page 463

of the court’s opinion, provides for the appointment of a

guardian for minors and other persons residing without the

District, but who have estates therein ‘‘after notice to all

—33—

[Aprenprx]

persons interested, to be given in such manner as the Com-

missioner shall order * * *.»» Alaska, like California, Iowa,

Oklahoma, and numerous other states provides for personal

service of process where a resident is involved, but for some

type of constructive notice where a nonresident is involved.

Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623: This

is another case where an attempt was made to appoint a

committee for a resident insane person without any notice

whatever to him. The case is based entirely upon an inter-

pretation of a statute as shown from the following quota-

tion:

““* * * Tn Lance v. McCoy, 34 W. Va. 416, 12 S. E.

728, the opinion is expressed that such an appointment

by a County Court without notice, as required by

Code, c. 58, Sec. 34, is void. A re-examination of this

question in this case has confirmed me in the view then

expressed. * * *”? (2 ¢, 623)

The question before the court was whether an appointment

could be made without notice in the face of a statute requir-

ing notice.

Cooper v. Burton, (Ct. App., D. C.) 127 F. (2d) 741:

[his case merely held that the District Court of the District

f Columbia could not adjudicate the mental condition of a

lunatic residing in New Jersey, for the purpose of con-

rolling properties located in New Y ork. The court express-

y found that a receiver or custodian of the property of the

neompetent located in the District of Columbia could be

ppointed. In this connection the court said:

“«“* * * Doubtless it is true that the courts of the

District have power to grant protection to property of

insane persons, wherever they may be at a particular

time, if the property itself is located in the District of

Columbia, but protection of property is not the object

of this petition. Appellants are not interested in ob-

—34—

[ APPENDIX]

taining the appointment of a receiver or custodian of

the small amount of Mrs. Coopers property in the Dis-

trict of Columbia. They are seeking an adjudication of

insanity and the appointment of a committee for the

purpose of controlling properties located in New York,

and this character of relief the courts of the District

may not grant in the absence of personal service in the

District of Columbia.’’ (1 ¢. 743)

On rehearing the court expressly states there is nothing in

the opinion foreclosing the appointment of a receiver or

custodian of Mrs, Cooper’s property in the District of Co-

lumbia. (2 ¢. 743) That is what happened in the case at

bar. The Texas guardianship was limited to petitioner’s

property within that state.

Morrissey v. Rodgers, 137 Kan. 626, 21 P. (2d) 359, in-

volved the question of whether a guardian of an insane per-

son appointed by a Nebraska court was entitled to certain

personal property located in Kansas. The Supreme Court

of Kansas merely held that the trial court committed error

in refusing to admit evidence on the question of whether

the incompetent was a resident of Nebraska, since if he was

not a resident of that state the appointment of a guardian

over his person would be invalid. No attack was made on

the appointment of a guardian of his estate,

Beeler v. Beezley, 126 Kan. 268, 267 Pac. 1112, involves

the interpretation of a Kansas statute which limited the ju-

risdiction of the probate courts of that state in appointing

guardians ‘‘to anyone in its county.’’ The court merely

held that under such statute the probate court did not have

jurisdiction of any person outside the county in a guardian-

ship proceeding. Federal Trust Co, v, Allen, 110 Kan. 484,

204 Pac. 747, is a Kansas case which was cited by petitioner

below, but which has been omitted here for the reason, no

—35—

[Aprenprx]

doubt, that this case approves a Nebraska appointment of

a guardian of an insane person on constructive notice. The

Nebraska appointment which was held valid by the Supreme

Court of Kansas was based on publication notice and out

of state service. In this connection the court said:

‘““* * * Notice as provided by the statutes of Ne-

braska was given by publication to all persons inter-

ested, and a certified copy of the notice was delivered

to Emily J. Weston on November 25, 1920, at the home

of her stepson in El Dorado, Kan. * * *.”’ (1 e. 748)

Prior to 1939 the Kansas nonresident statute provided

that a guardian for a nonresident incompetent may be ap-

pointed only where he ‘‘has been adjudicated incompetent

in the state of his residence,’’ (Sec, 39-241 G. §. 1935) and

in Henry v, Edde, (1938) 148 Kan. 70, 79 P. (2d) 888, the

Supreme Court of Kansas held there was no statutory au-

thority in Kansas for the appointment of a guardian for

a nonresident incompetent prior to his adjudication as an

incompetent in the state of his residence. In spite of the

above statute Mr. Justice ALLEN wrote a vigorous dissent-

ing opinion wherein he took the position that even in the

absence of a statute the District Courts of Kansas had the

inherent power to appoint a guardian of the estate of a

honresident incompetent. In this connection he said:

‘** * * Ordinarily one would expect to go to the

probate court to appoint a guardian, but our statutes

relative to probate courts do not cover the situation of

a non-resident, actually incompetent, but who has not

been so adjudged, owning property in this state, and

our decisions clearly indicate the non-existence of a

remedy for the situation in the probate court, Under

such circumstances, the District Court with its inher-

ent equitable powers over the estate of incompetents

is the only forum to which resort may be had.

—36—

[APPENDIX]

**Tt would be an astonishing hiatus in the law if

real and personal property in this state, belonging to

a non-resident incompetent, could not be protected from

waste and spoilation.

‘‘There is no doubt equity has full and complete

jurisdiction over the persons and property of incompe-

tents, where the jurisdiction has not been taken away

by the statute.’’ (2 c. 894)

The Legislature of Kansas hastened to correct this ‘‘as-

tonishing hiatus in the law’’ and repealed the above section

of the Kansas statute by a new probate code passed in

1939, one year after the above opinion, The new code omits

the requirement that an incompetent must first be adjudi-

cated as such in the state of his residence before a Kansas

guardian may be appointed. Section 59-1803, 1947 Supp. to

G. S. Kan. 1935. This statute not only is broad enough to

include nonresident incompetents, but it expressly provides

that a guardian may be appointed for a nonresident person

of full age in the state of his residence providing he is a

minor under the laws of the State of Kansas. There can

be no question but that under the 1939 statute a probate

court in Kansas may appoint a guardian of the estate of a

nonresident infant or incompetent regardless of whether he

has been so adjudicated in the state of his residence. No

Kansas case can be cited as holding that an act similar to

the Texas act under consideration is unconstitutional.

Hansell v. Hansell, (1892) 44 La. Ann. 548, 10 So. 941,

is another case that must be considered in the light of the

statutes being interpreted. When so considered, it sup-

ports our contention. The Hansell case did not involve the

appointment of a guardian, but rather an action for the

partition of certain land and the appointment of a curator

ad hoc, The court held that under the laws of Louisiana a

—37—

[APPENDIX]

curator ad hoc could not be appointed for an insane per-

son prior to the time he had been interdicted, but that he

must be presumed sane until he had been declared other-

wise by a proper court in the state of his residence, Never-

theless, the partition sale was upheld on the ground that

the alleged insane person was an absentee and, under the

Louisiana law, the curator ad hoc was properly appointed

on that ground regardless of whether he was sane or insane.

If the Louisiana civil law rule be applied to Texas, Willard

Gragg, petitioner’s next friend, has no standing in this

Court. The duties of a curator ad hoc are similar to those

of a next friend or guardian ad litem, and under the Louisi-

ana rule the District Court of Clay County, Texas, was

without jurisdiction to find that petitioner was a person of

unsound mind for the purpose of appointing Willard Gragg

his next friend in this case; and since, unlike Louisiana,

Texas does not have a statute providing for the appoint-

ment of a next friend for an absentee sane person, his ap-

pointment could not be Supported on that ground. Louisiana

does not have a nonresident statute similar to the Texas

statute. As a matter of fact, in State v. Servier, (1914) 136

La. 45, 66 So. 392, the Supreme Court of Louisiana held

that the Louisiana statute providing for the commitment of

insane persons did not include nonresidents within the

state. As evidence that the court based its decision on the

statute rather than on any question of constitutional right,

We quote the following language :

“‘From the text of the law prescribing the form or

order of commitment, we think that the lawmaker in-

tended to exclude nonresidents and transients from the

operation of the act, * * *”? (pp. 392-393)

The Louisiana court does not purport to hold that a statute

like the Texas statute would not be valid either under the

-_ SA —_—

[Avprxorx)

Constitution of Louisiana or the Federal Constitution. Both

the Constitution and statutes of Texas provide for the ap-

pointment of guardians of nonresident persons of unsound

mind.

McMullin v. Commonwealth, etc., 261 Pa. 574, 104 Atl.

760, involved the interpretation of a Pennsylvania statute

authorizing a guardian of a nonresident ward to remove

property. In defining the issues the court said:

**The issue as thus defined by the pleadings was a

very narrow one, a pure question of law, and confined

to an inquiry as to the legislative intent in the act of

April 13, 1868, supra.* * *’’ (20. 761)

The Pennsylvania guardianship statute also applies to non-

residents. Pa, Sta. 1920, Sec. 14367. In Appeal of Kar-

many, 242 Pa. 300, 89 Atl. 84, the Supreme Court of Penn-

sylvania upheld the appointment of a guardian for a non-

resident person of unsound mind who was absent from the

Commonwealth, but had real estate therein. The type of

notice is not shown, but it necessarily was constructive,

Minnesota v. Probate Court, 309 U. S. 270, 84 L. ed.

744, was an action for commitment of a person alleged to

be a psychiatric personality. The constitutionality of the

statute was upheld. Minnesota has a nonresident statute

similar to the Texas statute. It provides, ‘‘notice shall be

given in such manner and to such person as the court may

determine.’’ Minn. Sta. 1941, Sec. 525.55. The notice in

In re Edgerly, 82 Minn. 96, 84 N. W. 653, was by mail.