State ex rel. v. Brasher. relator was possessed of an estate or property." The writ of certiorari was ordered issued returnable on April 7th. On March 26th, the judge of the probate court appeared in open court; waived issue and service of the writ of certiorari, and filed a certified copy of all papers and proceedings in the probate court relative to the proceedings in question. On April 13th the circuit court rendered judgment quashing the probate judgment and proceedings on the ground that the probate court had not acquired jurisdiction over the person of Sam Pollard. From this order and judgment quashing the probate judgment and proceedings, the judge of the probate court appealed. OPINION. STURGIS, P. J.-The statute under which the probate court proceeds in adjudications of insanity expressly provides that the alleged insane person shall be notified of the proceedings unless the probate court order such person to be brought before it. [Sec. 476, R. S. 1909.] The concluding clause of that section purports to authorize the adjudication without notice to the alleged insane party or requiring his attendance, provided the court spreads on its records the reason why notice or attendance is not required. This last provision was held unconstitutional by our Supreme Court in Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206, as being violative of the constitutional provision forbidding any person being deprived of his liberty or property without due process of law, which necessarily includes notice and opportunity to be heard. As we read that decision, however, it does not hold unconstitutional the provision dispensing with notice when the court causes such party to be brought before it at the hearing. The case just cited involved a proceeding which was commenced under the statute of 1835 which provided that the court "shall cause the person alleged to be insane to be brought before the court;" but when the trial was had the statute of 1845 was in force providing State ex rel. v. Brasher. no more than that "the court may in its discretion cause the person alleged to be of unsound mind to be brought before the court." Nothing whatever was said in the statute about notice and none was required unless the bringing of the party before the court was itself notice or its equivalent. This continued to be the law until 1879 when the present statute was enacted. Speaking of the record by which the person was adjudged insane in the Hunt case under the statute of 1845, the Supreme Court said, 1. c. 183, it "not only wholly fails to show he was notified in any way of that proceeding and that no reason was spread on the record for not bringing his body before the court, but it also fails to show that after qualifying the guardian did anything whatever." The court, however, there said, 1. c. p. 176: "It must also be borne in mind that the statutes of 1835 required notice, that is, required the person to be brought into court." Likewise in the case of Bank v. Shanklin, 174 Mo. App. 639, 161 S. W. 341, the court held an insanity adjudication void where the record of such proceeding showed that the alleged insane person was neither notified of, nor brought before the court at, such proceeding. The court in no wise holds that the bringing of such party before the court would not constitute a sufficient notice or that the clause of the statute so providing is unconsitutional in not affording due process of law. State ex rel. v. Duncan, 195 Mo. App. 541, 193 S. W. 950, holds no more than that where the alleged insane party is not brought before the court and the court's jurisdiction, depends on the party being served with notice, then the valid service of a written notice is jurisdictional. The court in no way holds that bringing the party before the court is not itself notice. In Crow v. Meyersieck, 88 Mo. 411, the court held that the notice given was void and in itself showed want of jurisdiction; but the court further held that a recital in the record that the alleged lunatic was present at the hearing (not merely as a witness as in Bank v. Shanklin, supra, in a proceeding to have his restora State ex rel. v. Brasher. tion to sound mind declared nor in the capacity of objecting to the jurisdiction) is sufficient notice to confer jurisdiction on the probate court and make the adjudication valid. · The holding of our courts that an adjudication of insanity, without giving the person notice of the proceeding so as to give him an opportunity to be heard, is void as not being due process of law, is in accordance with the current of authority on that subject as shown in Evans v. Johnson, 23 L. R. A. 737, and cases cited both in the opinion and in the editorial note. All the cases dwell on the necessity of notice in such proceedings but no one would 'interpret such cases as meaning that such notice might not be waived nor should they be taken as holding that notice means only a formal or even an informal writing giving the time, place and purpose of the inquiry, served upon the person to be affected, or verbal notice of like character. In the West Virginia case, supra, the court said in speaking of the necessity of notice in such proceedings that "almost as well might we convict a man of crime without notice." Yet, the only notice given in criminal cases is the arrest and bringing the party before the court. It is usual in criminal cases that a warrant for the arrest states the nature of the proceeding and the court taking cognizance thereof; and so did the warrant in this case recite that: "Whereas, a statement in writing has been presented to the probate court of Pemiscot County, Missouri, by Jas. J. Long, Public Administrator and a citizen of Pemiscot County, Missouri, stating that one Sam Pollard, is insane and incapable of managing his affairs. These are therefore to command you to take the said Sam Pollard and him safely keep until the Probate Court shall convene and inquire into the. sanity of said Sam Pollard.” All the cases we have been able to find where this point is discussed hold that the compliance with the statute requiring the alleged insane party to be brought into court under court process as a party to the proceeding, is valid and affords sufficient notice. In fact State ex rel. v. Brasher. the statute of most of the States provide for notice by bringing the party into court. In Re Lambert (Cal.), 55 L. R. A. 856, while holding that a proceeding for adjudging a person insane, based on a statute without any provision for notice to the alleged insane person, is void as depriving such person of his liberty and property without due process of law, the court said: "The case before us does not involve the right of the State to provide for the summary arrest of a person against whom a charge of insanity is made, and his temporary detention until the truth of the charge can be investigated. Such arrest would itself be a notice to him of the charge, under which he would be afforded an opportunity for a hearing thereon." The Supreme Court of Indiana in Nyce v. Hamilton, 90 Ind. 417, 418, said: "The statute provides that under the proper written statement being filed, such court shall cause such person to be produced in court, and shall cause an issue to be made by the clerk of such court, denying the facts set forth in such statement; which issue shall be tried by a jury, to be empanelled under the direction of said court. If in this case appellant had been thus 'produced in court,' it could not be said, with reason, that additional notice would have been required to give the court jurisdiction. This mode of acquiring jurisdiction over the person is fixed by the law making power, and we know no reason why it is not sufficient, or upon what ground it can be claimed that the Legislature has no authority to prescribe it." This holding is followed by the same court in Martin v. Motsinger, 130 Ind. 555, 30 N. E. 523, where this is stated: "But, while this is true, and while there may be a valid inquest and judgment in such cases, without notice, when the party is present, it is otherwise when he is not present, and is not represented by someone authorized to appear for him. He is entitled to his day in court. When he is actually brought in, or voluntarily appears, he has the right guaranteed to him by the Constitution. If, however, he is not brought in, and the court, after an ex parte hearing, and without notice to State ex rel. v. Brasher. him of any character, and without his knowledge, proceeds to hear and determine the matter, it cannot be said that he has had his day in court." In Fore v. Fore, 44 Ala. 478; the court, speaking of a proceeding of lunacy under the statute of that State, states the law thus: "In this case the requisitions imposed by the State seem to have been very precisely pursued. The writ of arrest of the lunatic, or the alleged incompetent, was duly served upon him. This completed the jurisdiction of the judge of probate, and brought the defendant into court; no other notice is required by the statute. No doubt a party is entitled to notice of proceedings against him to have him declared a lunatic, or a person non compos mentis. But that is not the condition of this case. Here the party had the notice that the statute prescribes." In a later case, Croft v. Simon, 24 Southern 380, a proceeding under this same Alabama statute, providing that the judge shall "issue a writ directed to the sheriff to take the person alleged to be of unsound mind and if consistent with his health and safety have him present at the trial," was attacked because written notice was served on the party but he was not produced in court. The court held that such service of notice would dispense with producing him in court. This case reached the Supreme Court of the U. S. Simon v. Croft, 45 Law Ed. 1165, and was affirmed, the court quoting the Alabama statutes and citing Fore v. Fore, supra, as holding that the service of the writ was all that was required and brought the defendant into court. The court further held that, while the alleged lunatic was not arrested and not produced in court on account of his condition, it would not be inferred that he was prevented from being heard in his own defense. In an early Kentucky case, Lackey v. Lackey, 47 Ky. 107 (8 Ben Monroe) where no notice was given to the alleged insane person the court uses this language: "Where, however, the defendant is brought into court, and the inquest held in open court, neither notice nor writ is necessary. Persons of unsound mind are under the protective care |