Mr. Justice Thompson
delivered the opinion of the court:
Appellant, Helen Calhoun Cash, prosecutes this appeal to reverse a judgment of the Appellate Court for the Second District, which affirmed a judgment of the circuit court of Kane county dismissing her petition to vacate an order of the county court of that county, adjudging hei insane. The petition for inquisition was filed in the county court of Kane county, May 19, 1938. Notice was served on appellant on May 21, and on May 23 a hearing by a commission of physicians appointed by the county judge, at which the judge and appellant were present, was held in the Resthaven Sanitarium. Upon the report and findings of the commission being filed, the court, regularly convened, entered an order adjudging appellant to be insane. No appeal was taken from that order and it is not contended that appellant is not now or was not then insane.
On September 1, 1938, on appellant’s behalf, a petition was filed in the county court to set aside the adjudication of-insanity on the ground that the entire proceedings were void because appellant was shown to be a resident of Cook county and had been removed to Kane county by fraud and duress, and that she was not “found” in Kane county within the meaning of that word as used in the Lunacy Act. (Ill. Rev. Stat. 1941, chap. 85, par. 3.) The county court dismissed the petition. On appeal to the circuit court a trial de novo was had and the petition was again dismissed. From that order an appeal was taken to the Appellate Court for the Second District, which court, for failure of appellee to file briefs, reversed the case pro forma and remanded the cause to the circuit court. When the cause was redocketed in the circuit court, an amended petition was filed on appellant’s behalf which was also denied. An appeal to the Appellate Court resulted in an affirmance of that order and leave to appeal to this court was granted.
It is alleged in the amended petition in substance: (a) that at the time of the commencement of the action, appellant was, and from thenceforth has been, a resident of Cook county and at no time was she “found in Kane county” within the meaning of the statute; (b) that on the night of May 3, she was confined to and held a prisoner in a room at the Stevens Hotel in Chicago, by her sister and a nurse; (c) that on the afternoon of May 4, she was removed from the Stevens Hotel and taken by her sister and a nurse to Parkway Sanitarium in Chicago and there locked in a room with a nurse present preventing and restraining her from communicating with friends and attorneys as she desired and that she was kept a prisoner there that night; (d) that on May 5, she was removed from the Parkway Sanitarium by her sister and others and taken to Resthaven Sanitarium against her wishes; (e) that upon arriving there she was locked i,n a room and held a prisoner against her wishes and was riot permitted to communicate with her friends and attorneys until long after May 23, 1938; (f) that she was brought into Kane county by fraud, misrepresentation, trickery, threats and duress; (g) that there was no sheriff, bailiff or clerk present at the hearing, and that she was not advised and was not aware that a court proceeding was being held and that she was not asked if she desired counsel or a trial by a jury; (h) that a fraud was perpetrated on the court by the signing of the petition by Veronica Kelley because there is no such person, and (i) that all the persons named in the lunacy petition by whom the facts could be proved, are connected with the Resthaven Sanitarium, except Doctor Nerancy.
The prayer of the petition, as amended, was that all the orders entered in the cause be expunged for lack of jurisdiction and because entered without due process of law. An answer denying the material averments of the amended petition, with a reply thereto, tendered the issues of fact on which appellant, to succeed, must sustain the burden of proof.
A motion to dismiss the appeal has been taken with the case. In support of the motion, suggestions are submitted that no appeal is allowed under the Lunacy Act other than from the county court to the circuit court and that since the statute specifically provides for an appeal to, and a trial de novo in, the circuit court it amounts to an implied denial of any other right or method of review except by habeas corpus as provided in section 24 of the Lunacy Act. Suggestions in opposition to the motion to dismiss raise the points that the Lunacy Act does not specifically deny the right of appeal which has been recognized both by this court and by the Appellate Court, and that an appeal is authorized by section 77 of the Civil Practice Act and section 122 of the act in relation to county courts.
Under the Lunacy Act of 1874 no provision was in eluded for any appeal from an order adjudging insanity, and this court held in People ex rel. Fullerton v. Gilbert, 115 Ill. 59, that no appeal from such an order would lie. The argument that section 122 of the act in relation to county courts was applicable to such proceedings was expressly rejected.
Section 7 of the present Lunacy Act, which was passed in 1893, (Ill. Rev. Stat. 1941, chap. 85, par. 7,) provides that the rights of the person whose mental condition is inquired into shall be the same as those of any defendant in a civil suit,-and while this is a petition to set aside the order of the county court on the ground that appellant was fraudulently taken into Kane county, it is germane to the issue of lunacy, and the rights of the defendant, the appellant here, are directly affected. Section 7 provides that the rights of the person whose mental condition is inquired into shall be the same as those of any defendant in a civil suit, and section 11 of the act as it existed when this petition was filed, and which controls in this case, specifically provided that “appeals shall be allowed to the circuit court from any order or judgment made or rendered under this act.” (Ill. Rev. Stat. 1937, chap. 85, par. 11.) If we are to give any meaning at all to the language of section 7, it must mean that the general laws in regard to the rights of defendants are to be applicable to proceedings under the Lunacy Act. Under such construction the appellant here would have the right of appeal from the final order or judgment of the circuit court as provided by the Civil Practice Act. Ill. Rev. Stat. 1941, chap. 110, par 201.
In Neely v. Shepherd, 190 Ill. 637, this court assumed jurisdiction to review an Appellate Court judgment rendered in an appeal from a judgment of the circuit court entered after a trial de novo in an appeal from the county court.
In Haines v. Cearlock, 184 Ill. 96, this court took jurisdiction on a writ of error to review an order of the county court entered in an insanity inquest, but the writ was dismissed. This court did not, however, notice or discuss the right of review. We are of the opinion, therefore, that under section 11 of the Lunacy Act as it existed at the time the petition was filed and under section 7 of such act, and section 77 of the Civil Practice Act, the Appellate Court and this court, on appeal, have jurisdiction to review judgments of trial courts in proceedings under the Lunacy Act, and that appellees’ motion must be denied.
The first question on the merits with • which we are faced is whether the order assailed is void because the county court of Kane county had no jurisdiction.
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Mr. Justice Thompson
delivered the opinion of the court:
Appellant, Helen Calhoun Cash, prosecutes this appeal to reverse a judgment of the Appellate Court for the Second District, which affirmed a judgment of the circuit court of Kane county dismissing her petition to vacate an order of the county court of that county, adjudging hei insane. The petition for inquisition was filed in the county court of Kane county, May 19, 1938. Notice was served on appellant on May 21, and on May 23 a hearing by a commission of physicians appointed by the county judge, at which the judge and appellant were present, was held in the Resthaven Sanitarium. Upon the report and findings of the commission being filed, the court, regularly convened, entered an order adjudging appellant to be insane. No appeal was taken from that order and it is not contended that appellant is not now or was not then insane.
On September 1, 1938, on appellant’s behalf, a petition was filed in the county court to set aside the adjudication of-insanity on the ground that the entire proceedings were void because appellant was shown to be a resident of Cook county and had been removed to Kane county by fraud and duress, and that she was not “found” in Kane county within the meaning of that word as used in the Lunacy Act. (Ill. Rev. Stat. 1941, chap. 85, par. 3.) The county court dismissed the petition. On appeal to the circuit court a trial de novo was had and the petition was again dismissed. From that order an appeal was taken to the Appellate Court for the Second District, which court, for failure of appellee to file briefs, reversed the case pro forma and remanded the cause to the circuit court. When the cause was redocketed in the circuit court, an amended petition was filed on appellant’s behalf which was also denied. An appeal to the Appellate Court resulted in an affirmance of that order and leave to appeal to this court was granted.
It is alleged in the amended petition in substance: (a) that at the time of the commencement of the action, appellant was, and from thenceforth has been, a resident of Cook county and at no time was she “found in Kane county” within the meaning of the statute; (b) that on the night of May 3, she was confined to and held a prisoner in a room at the Stevens Hotel in Chicago, by her sister and a nurse; (c) that on the afternoon of May 4, she was removed from the Stevens Hotel and taken by her sister and a nurse to Parkway Sanitarium in Chicago and there locked in a room with a nurse present preventing and restraining her from communicating with friends and attorneys as she desired and that she was kept a prisoner there that night; (d) that on May 5, she was removed from the Parkway Sanitarium by her sister and others and taken to Resthaven Sanitarium against her wishes; (e) that upon arriving there she was locked i,n a room and held a prisoner against her wishes and was riot permitted to communicate with her friends and attorneys until long after May 23, 1938; (f) that she was brought into Kane county by fraud, misrepresentation, trickery, threats and duress; (g) that there was no sheriff, bailiff or clerk present at the hearing, and that she was not advised and was not aware that a court proceeding was being held and that she was not asked if she desired counsel or a trial by a jury; (h) that a fraud was perpetrated on the court by the signing of the petition by Veronica Kelley because there is no such person, and (i) that all the persons named in the lunacy petition by whom the facts could be proved, are connected with the Resthaven Sanitarium, except Doctor Nerancy.
The prayer of the petition, as amended, was that all the orders entered in the cause be expunged for lack of jurisdiction and because entered without due process of law. An answer denying the material averments of the amended petition, with a reply thereto, tendered the issues of fact on which appellant, to succeed, must sustain the burden of proof.
A motion to dismiss the appeal has been taken with the case. In support of the motion, suggestions are submitted that no appeal is allowed under the Lunacy Act other than from the county court to the circuit court and that since the statute specifically provides for an appeal to, and a trial de novo in, the circuit court it amounts to an implied denial of any other right or method of review except by habeas corpus as provided in section 24 of the Lunacy Act. Suggestions in opposition to the motion to dismiss raise the points that the Lunacy Act does not specifically deny the right of appeal which has been recognized both by this court and by the Appellate Court, and that an appeal is authorized by section 77 of the Civil Practice Act and section 122 of the act in relation to county courts.
Under the Lunacy Act of 1874 no provision was in eluded for any appeal from an order adjudging insanity, and this court held in People ex rel. Fullerton v. Gilbert, 115 Ill. 59, that no appeal from such an order would lie. The argument that section 122 of the act in relation to county courts was applicable to such proceedings was expressly rejected.
Section 7 of the present Lunacy Act, which was passed in 1893, (Ill. Rev. Stat. 1941, chap. 85, par. 7,) provides that the rights of the person whose mental condition is inquired into shall be the same as those of any defendant in a civil suit,-and while this is a petition to set aside the order of the county court on the ground that appellant was fraudulently taken into Kane county, it is germane to the issue of lunacy, and the rights of the defendant, the appellant here, are directly affected. Section 7 provides that the rights of the person whose mental condition is inquired into shall be the same as those of any defendant in a civil suit, and section 11 of the act as it existed when this petition was filed, and which controls in this case, specifically provided that “appeals shall be allowed to the circuit court from any order or judgment made or rendered under this act.” (Ill. Rev. Stat. 1937, chap. 85, par. 11.) If we are to give any meaning at all to the language of section 7, it must mean that the general laws in regard to the rights of defendants are to be applicable to proceedings under the Lunacy Act. Under such construction the appellant here would have the right of appeal from the final order or judgment of the circuit court as provided by the Civil Practice Act. Ill. Rev. Stat. 1941, chap. 110, par 201.
In Neely v. Shepherd, 190 Ill. 637, this court assumed jurisdiction to review an Appellate Court judgment rendered in an appeal from a judgment of the circuit court entered after a trial de novo in an appeal from the county court.
In Haines v. Cearlock, 184 Ill. 96, this court took jurisdiction on a writ of error to review an order of the county court entered in an insanity inquest, but the writ was dismissed. This court did not, however, notice or discuss the right of review. We are of the opinion, therefore, that under section 11 of the Lunacy Act as it existed at the time the petition was filed and under section 7 of such act, and section 77 of the Civil Practice Act, the Appellate Court and this court, on appeal, have jurisdiction to review judgments of trial courts in proceedings under the Lunacy Act, and that appellees’ motion must be denied.
The first question on the merits with • which we are faced is whether the order assailed is void because the county court of Kane county had no jurisdiction. No question is raised as to the jurisdiction of the subject matter. The law confers jurisdiction on county courts to hear and determine questions presented in lunacy inquisitions. The controversy hinges on what is the proper venue in such cases as this. Diligent search has failed to supply any decisive case. Resort must be had, therefore, to general principles, taking into consideration any conditions detailed in this record.
Appellant contends, and there is considerable evidence to support, that she is a resident of Cook county, although there is abundant proof that she was still a resident of Texas. She was considered, in the petition upon which the inquiry into her sanity was based, as residing in Cook county. The proof shows that she had resided in Texas and in Chicago and was in Florida shortly before she was brought to the Stevens Hotel in Chicago. That she was in jail in Florida and was aided by Miss Keeler, a friend from Whiting, Indiana, and by her sister, a doctor of Albany, New York, is uncontradicted. Both made the trip to Florida to assist her because she was in difficulty. It is not denied that she was declared insane by the probate court in Florida.
The record conclusively shows'that appellant was given notice of the hearing two days prior to May 23. It is as conclusively established that she was physically present in Kane county when notified and she was present at the inquisition. No one doubts her physical presence in the county on May 19, when the petition for the inquiry was filed.
Where a person claimed to be insane is actually found and duly served with notice in a county, he is properly “found,” within the county, within the meaning of the statute, unless he was there by reason of some fraud or duress on the part of someone in order to obtain service or confer jurisdiction in that county. That rule has been applied under statutes using the words, “may be found.” Willard v. Zehr, 215 Ill. 148; McNab v. Bennett, 66 Ill. 157.
It is quite true that courts will not tolerate an abuse of process by which a party is brought within the jurisdiction of the court through some fraud or duress for the purpose of obtaining service or of conferring jurisdiction in a particular county. The cases of McNab v. Bennett, 66 Ill. 157, and Warner v. Bright, 52 Ill. 35, are relied upon by appellant as rendering this rule applicable in support of the argument that appellant was not “found in” Kane county. An examination of those cases discloses that the question was presented under totally different aspects from that which appears in the record before us.
The record in the instant case is destitute of proof that appellant was confined and held prisoner in a room in the Stevens Hotel on the night of May 3, 1938, by her sister and a nurse. She testified on both direct and cross-examination, after which the court interrogated her. She testified that she built a home in Texas, moved a great deal of her furniture there, voted in that State, and intended when shé went there, to make her home in the Rio Grande Valley. She considered herself a resident of Texas, was made president of a landowner’s association and expected to make that her permanent residence. Some of her goods' were still in Texas at the time of the hearing. She testified she returned to the Broadview Hotel in Chicago the latter part of 1936, to re-establish her residence in Cook county, but left there for Florida in the latter part of 1937. She had been in Florida since December, 1937, when she encountered her difficulty. When Miss Keeler and her sister, Doctor Horner, came to Florida to assist her in her, trouble, she made up her mind absolutely to return to Illinois because the doctors said she had to have medical attention and she said she was coming back to get the care she needed. She testified that she came back to Illinois voluntarily. She had no trouble with her sister or Miss Keeler. When she arrived in Chicago she went voluntarily to the Stevens Hotel because it was centrally located, and registered under her own name. She and her sister called Doctor Low, with whom appellant was acquainted, and the services of Gladys Preston, a nurse, were obtained. Appellant called the First National Bank about honoring a check she was going to cash at the hotel. She remained at the Stevens one night in charge of the nurse. From the testimony of the nurse it appears that nothing was said about taking appellant to Grant Hospital, as claimed by appellant. -When they left the Stevens the nurse knew they were going to the Parkway Sanitarium. Appellant was dissatisfied with the room at the Parkway Sanitarium and her sister expressed a similar impression of the room. Since Doctor Horner lived in Albany the natural inference is that Doctor Low recommended the Parkway. Seeing her sister in distress, Doctor Horner, the evidence shows, arranged for her to be taken the next day to Resthaven Sanitarium, in every respect a highly desirable institution for the care and treatment of mental patients. There is no evidence of any force being used, nor of any deception practiced by anyone to get her into Kane county. There is no evidence, presumption or inference that anyone had any purpose or motive, in taking her there, to submit her to the jurisdiction of the county court of Kane county other than for her own welfare.
There is no proof of any wrongful detention for more than ten days without an adjudication of insanity. Appellant made no effort to leave the Stevens Hotel, the Parkway Sanitarium or Resthaven. While she testified that she was unable to communicate with her attorney, there is no proof of anyone interfering with her liberty in contacting friends or her attorney. If she had felt aggrieved at being detained, she was entitled to a hearing for her release by a habeas corpus proceeding. The proof fails to show any state of facts comparable to the circumstances in the case of Crawford v. Brown, 321 Ill. 305, where the woman who was placed in an asylum was not proved to be insane or dangerous to herself or others. In that case the doctor and nurse forcibly administered morphine so that the woman could be taken to the institution against her will. It is apparent, in the instant case, that efforts were being made for the welfare of appellant and that the proof fails to establish the charges of fraud or duress in bringing appellant into Kane county. The record further discloses timely notice given by the State’s Attorney on the order of the court, the presence of appellant at the hearing and the presence of the judge.
It is argued that the order of the county court was void because the oral proof shows that there was no sheriff, bailiff or clerk present at the hearing. This court has held that a sheriff and clerk are essential to a court in order for it to exercise judicial powers. (Witter v. Cook County Comrs. 256 Ill. 616.) The judge, however, exercises the judicial power with such assistants as he may lawfully have to aid him. The Lunacy Act authorizes the judge to appoint a commission of physicians, who, in his presence, conduct the inquisition, make and file with the clerk their report and findings as to the respondent’s sanity, and upon that report the judge pronounces his judicial order and the clerk enters it of record. The record in this case shows, by the convening order, that the sheriff, State’s Attorney and clerk were present when the order was entered. The record, in that respect, imports verity and cannot be impeached by oral testimony. People v. DeLisle, 374 Ill. 437.
The power and control over the person of lunatics is controlled by the Lunacy Act. The State has delegated, by statute, its special commission to the county judge to hold inquisitions into sanity. If a jury trial is demanded, the court must give the party such a trial. If the court is of the opinion that a hearing should be had by a commission of physicians, he may appoint them. When the judge acts in the capacity of a court, the court must be legally constituted. But when he is merely holding a hearing with a commission of physicians he is not attending so much in his character as judge as by virtue of a statutory duty for taking evidence, upon which his judicial authority is subsequently exercised when the commission’s report and finding is filed, at which time he may enter an order in accordance with the finding of the commission or he may set aside the finding and dismiss the proceedings and may enter such order as he deems proper for the disposition of the person alleged to be insane. (Ill. Rev. Stat. 1941, chap. 85, pars. 10 and 11.) At the time of entering the order, the court must be legally convened, as that is the time he exercises his judicial functions. The record conclusively shows by the convening order that the court was duly constituted at that time, with the sheriff, State’s Attorney and clerk present.
The final point argued is that the hearing was improperly held at Resthaven Sanitarium, in the absence of an affidavit showing appellant’s inability to attend court. This contention deserves no serious consideration. That point was not raised either in the county or circuit court and questions not raised below are not subject to review. The county judge exercised his statutory authority to fix a time and place for the hearing and he issued his warrant for the production of the person at that time and place.
The record is free from prejudicial error and the judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.
Mr. Justice Fulton took no part in the consideration or decision of this case.