Bliss Ex Rel. Jackson v. Bliss

Thomas, J., delivered the opinion of the Court. On the 7th of September, 1917, Alonzo O. Bliss filed in the Circuit Court for Prince George’s County a petition alleging that his wife, Eva Jackson Bliss, was, and had been “for sometime past,” of unsound mind and incapable of the government of herself, or the management of her estate; that she had “little property” and was dependent upon the petitioner “for her support and livelihood,” and that it was necessary for her protection that a suitable committee be appointed for her person and estate; that she was then undergoing treatment at the Laurel Sanitarium, near Laurel, in Prince George’s County, Maryland; that the petitioner was informed by her physicians that it was “important and essential to her welfare” that she be allowed “to remain quiet and undisturbed for an indefinite time”; that it would greatly excite and injure her to remove her from said sanitarium,” and that it would be impractical, dangerous and injurious, to her to have her brought before a jury. The petition then prayed that a “writ de lunático inquirendo be issued to the sheriff of Prince George’s County to inquire into the lunacy of the said Eva Jackson Bliss,” and that by the order of the Court her actual presence before the jury of inquisition and notice to her of the time of the sitting of said jury be dispensed with. The petition further prayed for a writ of subpoena directed against Mrs. Bliss, commanding her to be and appear in said Court on some certain day to be named therein, “and to answer the premises and abide by and perform such decree” as might be passed.

The petition was sworn to by the petitioner, and there was filed with it the affidavit of Doctor Cornelius DeWeese, physician of Laurel Sanitarium, ⁶⁴ as to the mental condition of Mrs. Bliss, and that it would greatly excite and injure her to bring her before a jury, and on the same day the Court ordered the writ de limatico inquirendo, and the writ of subpoena, to issue as prayed, and further ordered that in the execution of the first mentioned writ the presence of Mrs. Bliss before the jury, “and notice to her of the time of the sitting” of the jury be dispensed with. The inquisition was taken on the 18th of September, 1915,, at Laurel, and the jury found, that Mrs. Bliss was of unsound mind and not capable of the government of herself or the management of her estate, and that she was possessed of the property described in the inventory as “$50,000 30-year 4% bonds Alonzo O. Bliss properties”- and “$2,000' worth of securities. All in a. safe deposit box in District national Bank, Washington, D. C.—total value, $52,000.” The record shows that the writ of subpoena was returned by the sheriff, “served this 18th day of September, 1915.” The inquisition was confirmed on the 28th of September, 1915, and Arthur L. Bliss and Cornelius DeWeese were appointed committee, of the person and estate of Mrs. Bliss. On the 23rd of March, 1916, Arthur L. Bliss and Cornelius De-Weese .filed a petition to be relieved of their duties as such committee, and with it an account in which they charge themselves with three months’ interest on the $50,000 4% mortgage bonds of the Alonzo O. Bliss property, amounting to $500.00, claimed credit for board, and attention at Laurel Sanitarium, costs, expenses, etc., amounting to $1,939.25, and stated that the amount of expenses in excess of income was advanced by Alonzo O. Bliss.

They also filed an inventory of the estate of Mrs. Bliss consisting of $50,000 bonds of the Alonzo O. Bliss property, a policy of life insurance in the Prudential Life Insurance ’Company and a number of chattels, all of which were stated to be in the possession of Alonzo O. Bliss, and on the 28th of March, 1917, the Court below passed an order discharging the petitioners and appointing Alonzo O. Bliss and B. A. Bennett committee of the person and estate of Mrs. Bliss. ⁶⁵ On the 3rd of July, 1917, Mrs. Bliss, by her mother, Sallie F. Jackson, and her sister, Vivia G. Holmes, as her next friends, filed a petition in the cause in which, after referring to the previous proceedings, including the appointment of Alonzo O. Bliss and E. A. Bennett committee of her person and estate, she alleged that at the time of the appointment of said committee she was a patient at the Laurel Sanitarium, but as her condition did not improve while there she was, with the advice and consent of her said committee, removed to the home of her sister, Vivia G. Holmes, near Wheaton, in the State of Maryland, where she still resided, and that since then she had shown marked improvement in her mental and physical condition; that for three months or more Alonzo-O. Bliss had not been inclined to contribute to her proper support and maintenance and had from time to time threatened to rem|ove her from the home of her sister. The petition further alleged that the said mother and sister of Mrs-. Bliss, as her next friends, had filed a hill of complaint in the Supreme Court of the District of Columbia against Alonzo O. Bliss, in which they sought to compel him to contribute out of his own estate to her support; to have set aside a deed alleged to have been executed by her and procured by him while she was insane, and to have a proper person appointed trustee on the ground that as she w!as a resident of the Disrtricfc of Columbia, and had no property in the State of Maryland, the Circuit Court for Prince George’s County had no jurisdiction to entertain the proceedings- in which she was adjudged insane and Alonzo O. Bliss and E. A. Bennett were appointed committee of her person and estate, hut that Alonzo O'. Bliss had evaded service of process in that case.

The petition then alleged that Alonzo O. Bliss-, in execution of his threats, had induced E. A. Bennett to unite with him in an order directing one of the deputy sheriffs of Montgomery County to- take forcible possession of Mrs-. Bliss- and to remove her from the house of her sister to the Springfield Hospital for the Insane, at Sykesville, in the State of Maryland; ⁶⁶ that the deputy sheriff, accompanied by certain physicians, had attempted to execute the order by going upon the premises. of Vivia G. Holmes and demanding the custody of Mrs. Bliss, but that the demand was refused because the welfare of Mrs. Bliss, “mentally and otherwise,” depends upon her being taken care of in the home of friends and relations, and because to subject her to the excitement incident to her removal and association with the violent insane would impair her chances of ultimate recovery; that Alonzo O. Bliss was threatening further and other attempts to secure possession of the person of Mrs. Bliss; that as she was not a resident of the State of Maryland and had no property in that State, the Circuit Court for Prince George’s County had no jurisdiction to appoint Alonzo O. Bliss and R. A. Bennett committee of her person and estate and that they were not lawfully entitled to the custody of Mrs. Bliss, and that the proceedings instituted by Alonzo O. Bliss in said Court was a fraud upon that Court and the Supreme Court of the District of Columbia. The petition prayed that Alonzo O. Bliss and R. A. Bennett be restrained “from in anywise molesting the said Eva Jackson Bliss”; that the order appointing them committee be vacated and set aside, and for further relief. The Court passed an order restraining the committee as prayed until the further order of the Court to be passed after a hearing to be had on the 10th of July, 1911.

On the 24th of July the committee filed in the Court below a petition setting out the proceedings in the case, and alleging that while Mrs. Bliss was a patient at Laurel Sanitarium some of the members of her family expressed doubt as to her mental condition, and that with the view of convincing them of her’ insanity, and at their request, they permitted her to be removed to the home of Vivia G. Holmes, in Montgomery County, Maryland, with the understanding that she was to remain there temporarily; that upon information that came to them from time to time they concluded that she was not receiving in the home of Mrs. Holmes the care and attention ⁶⁷ she required, and that after consulting eminent physicians they decided that it would he to her interest to remove her to some proper institution; that accordingly they arranged to have her received as a patient at Springfield State Hos^ pital, at Sykesville, Maryland, and gave an order to Dr. Charles C. Marbury for her removal from the home of Mrs. Holmes to that institution. The petition prayed for* an order commanding Mrs. Holmes to- surrender the custody of Mrs. Bliss to the petitioners. On the same day the committee answered the petition of Mrs. Bliss, by her mother and sister as her next, friends., and filed a demurrer “to so such and such part of the petition” as questioned the jurisrdiction of the Court and alleged that the orders thereof were procured by fraud. The Court below passed an order requiring Mrs. Holmes to show cause why the prayer of the petition of the committee should not be granted, and setting the matter for hearing on August 3rd, on which date the Court sustained the demurrer of the committee and ordered “that testimony be taken in open Court on the remaining allegations of the petition, the answer of the committee thereto, the petition of the committee and the answer of Vivia G-.

Holmes to said petition.” The record contains about two hundred pages, of testimony taken in pursuance of the order of August 3rd, and on Octo her 30th, 1917, the Court below passed an order dismissing the petition filed by Mrs. Bliss by Mrs. Jackson and Mrs. Holmes, as her next friends, requiring Mrs. Holmes to deliver Mrs. Bliss to her committee, and requiring the committee to place her in the Shepherd and Enoch Pratt Hospital, and to “provide for her there all necessary requirements of a person in her mental condition, including the. regular and permanent care of two nurses.” The order further provided that Mrs. Bliss should not he removed from said hospital without an order of the Court; directed the committee to pay for her care there out of the income from her estate in their hands, and further provided, “And in case said fund shall not be ⁶⁸ sufficient said committee are required and directed to demand and collect from Alonzo O. Bliss, husband of Eva Jackson Bliss, the necessary and additional amount therefor.” On the 2nd of November, 1917, Mrs. Jackson and Mrs. Holmes, as next friend of Mrs. Bliss, filed an order for an appeal from the order of October 30th “as well as from'the order of the Court sustaining a demurrer of the respondents to their petition,” and the appellees have filed in this Court a motion to dismiss the appeal on the ground that the record was not transmitted to this Court within three months from the time the appeal was prayed, and a further motion to dismiss the appeal from the order of the Court below sustaining the demurrer to the petition of Mrs. Bliss, by her next friends, on the ground that said order was an order in •the nature of a final decree, and the appeal therefrom was •not entered within two months .from the date thereof. In regard to the first of these motions, it is only necessary to say that it appears from the affidavit of the clerk of the Circuit Court for Prince George’s County that the transcript of the record was completed on January 1st, 1918, was paid for on the 17th of January, and was deposited in the express office on the 29th of January for delivery to the clerk of this Court. Under such circumstances the appellants cannot be held responsible for the failure of the record to reach this Court within the required time. If the delay is chargeable to anyone other than the express company, it must be attributed to the neglect of the clerk of the Court below, who held the transcript twelve days after’ it was completed and paid for before attempting to transmit it to this Court-.

Section 26 of Article 5 of the Code authorizes an appeal from any final decree “or order in the nature of a final decree,” and section 28 provides “that on an appeal from a final .decree or order, all previous orders which may have' been passed in the cause shall be open for revision in the Court of Appeals,” unless an appeal has been previously taken under section 27, allowing appeals in certain specified ⁶⁹ cases. In construing these sections, this Court has held that an order in the nature of a final decree, from which an appeal lies under section 26, cannot be reviewed on an appeal from a final decree under section, 28 (Peoples v. Ault, 117 Md. 631 ), and the contention of the appellees in support of their second motion is that the order of the Court below sustaining their demurrer to the appellants’ petition was an order in the nature of a final decree, from which an appeal should have been entered within two months from its date, and that it cannot therefore be reviewed under the appeal taken on November 2nd, 1917. They rely upon the ease of Hendrickson v. Standard Oil Company, 126 Md. 577 , where the Court upheld the right of immediate appeal from an order sustaining a demurrer to three paragraphs of a bill of complaint, each one of which alleged distinct acts of the defendant, or causes of injury, in respect to which relief by injunction was sought, and referred to sections 26 and 27 as authorizing the appeal. In the later case of Reynolds v. Russler, 128 Md. 606 , the Court refused to extend the doctrine of Hendrickson’s Case to a case in which three distinct grounds for the relief claimed were set out in the same paragraph of the bill of complaint, and the appeal was from an order susr taining a demurrer to one of them.

But as the demurrer in this case was to so much of the petition as attacked the jurist diction of the Court below on the ground that Mrs. Bliss was not a resident of, and had no property in, the State of Maryland, and as we concur in the view of the Court below upon that question, it is not necessary to determine whether the order sustaining the demurrer was one from which, the appellants were bound to appeal within two months from its date. Learned counsel for the appellants, in carefully prepared briefs, Have collected and cited many cases bearing upon the question of jurisdiction in such cases, but none of them, goes to the extent of holding that where the alleged lunatic is within the jurisdiction of the Court at the time the writ is ⁷⁰ applied for and issued, the Court is without jurisdiction unless she is a resident of or has property within the State. In the case of Fowler v. Poling, 2 Barb. Ch.

(N. Y.), 305, decided in 1847, where the alleged lunatic formerly resided in New York, but was at the time the commission was applied for a resident of the State of Ohio, the Chancellor said, “the Court had no jurisdiction to issue a commission unless the alleged lunatic resided here, or was the owner of property in this State. And that in case of his non-residence the fact of his owning property here must be stated in the petition.” It does not appear, however, from the report of that case that Bowler was, at the time the commission was applied for, in the State of New York. In re Devausney, 52 N. J. Eq. 506, 28 Atl. 459 , quoted by the appellants, sustains the jurisdiction of the Court of Chancery to issue a