Allen v. Barnwell

48 S.E. 176, 120 Ga. 537, 1904 Ga. LEXIS 634

• Court: Supreme Court of Georgia
• Decided: July 12, 1904
• Status: Published

Opinion

LamáR, J.

(After stating the facts.) The delay involved in the necessity of giving ten days notice, before being able to obtain an order of commitment for one who is violent and insane, may occasion inconvenience or even danger. But it does not warrant the court in disregarding the command of the statute, though it may afford an argument to be addressed to the General Assembly with a view of shortening the time or of providing some proper method of restraint between the filing of the application and the hearing on the inquiry of lunacy. In the present case no notice whatever was given, nor was the alleged lunatic present in court at the time of the trial. The petition was filed, the writ issued, ■ the jury was impaneled, the verdict was rendered, and the guardian appointed on the same day. The want of the ten days notice being thus apparent on the face of the record, the recital-that “ the notice required by law had been given ” was no more effective, and imported no more validity, than any other step in the proceeding, all of which was coram non judice. Process and service are not essential in criminal cases. But the person to be deprived of liberty must be present, and one to be deprived of his liberty because of misfortune is certainly entitled either to be present or to the substituted service defined by statute. For though it is but an idle form to serve one actually insane, the fact of insanity is not established until after the hearing. It is the very issue to be determined on the inquiry, and, as suggested in several previous decisions, it would always be best in such eases to give notice to the person to be affected. But on principles fundamental and universal, a judgment without notice is void, and in every case there must at least be the notice required by the statute. If there are no relatives in the State upon whom service can be perfected, then a guardian ad litem should be appointed to represent the person alleged to be non compos. Morton v. Sims, 64 Ga. 298; Yeomans v. Williams, 117 Ga. 802; Foster v. Jones, 23 Ga. 168; Civil Code, §§ 2573, 2538. In all habeas corpus proceedings the interest of the party held in custody is of prime importance. Williams v. Crosby, 118 Ga. 298; Penal Code, §1226. It was therefore proper for the judge to hear evidence as to the applicant’s condition. She is not complaining of his judgment; and in view of what the evidence disclosed, his order remanding her to the custody of respondent until an investigation of her sanity could be had was not only authorized but humane. It preserved her legal rights and personal safety.

Judgment affirmed.

All the Justices concur.