# Opposition Brief — Henderson v. Shell Oil Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1948
- **Citation:** 335 U.S. 884

## Text

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
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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
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1880%3A3. Public record. Not legal advice.