Painter v. Painter. (2) But if the judgment has been obtained by fraud, or if the court had no jurisdiction, the rule is otherwise and relief may be had. Orvis v. Elliott, 65 Mo. App. 96; Shertz v. Kirtley, 62 Mo. 417; Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (3) In order to set aside a judgment for fraud, in direct proceedings, however, it must appear that the fraud was practiced in the very act of obtaining the judgment. Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (4) "In each county there shall be a county court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. The court shall consist of one or more judges, not exceeding three, of whom the probate judge may be one, as may be provided by law." Constitution of Missouri, Art. 6, Sec. 36; 1. R. S. 1909, page 98; Adopted in 1875, R. S. 1909, section 3845. (5) County courts have full and complete jurisdiction in the matter of sending such of the insane poor to the State hospitals and asylums as may be entitled to admission thereto. R. S. 1909, section 1411 to 1422, inclusive; Laws of 1911, page 115; Laws of 1919, page 182. (6) County courts are vested with judicial powers and their judgments cannot be collaterally attacked. Constitution of Missouri Article 6, section 1, R. S. 1909, page 85; Benton County v. Morgan, 163 Mo. 661; McKenzie v. Donnell, 151 Mo. 431. (7) An implied limitation on the legislature's power to enact a certain statute must be so clear and unmistakable as to make possible no other reasonable construction of the language used than that the power to enact the statute does not exist. A possible inference of its non-existence is not sufficient. It must always be borne in mind that our organic law is not like the Federal Constitution, a grant of power, but is simply a limitation upon power which the Legislature otherwise possesses. State ex rel. v. Burton, 266 Mo. 717; State ex rel. v. Locker, 226 Mo. 393. Where the constitution, in defining the jurisdiction of courts, uses no words of restriction, the Legislature is authorized to confer upon them or the judges thereof, other duties, powers and functions. State ex rel. v. (8) Painter v. Painter. Tincher, 258 Mo. 1. (9) The defendant is not a necessary. nor a proper, party to this action, and there is a defect of parties defendant. "The general rule is that all parties interested in maintaining a judgment should be made parties to the proceedings to vacate it." 15 Standard Encyclopedia of Procedure, page 208; Turner v. Jordan, 67 Ga. 604; Ferguson v. Smith, 10 Kansas, 394; Bevere v. Beardmore, 40 Ohio St. 70-79. (10) The parties in interest, in a proceeding in an inquest de lunatico under our statute, is first the public at large, that it may not suffer in person or property from the dangerous vagaries or mania of the individual alleged to be of unsound mind, and second, the alleged insane person. State ex rel. v. Guinotte, 257 Mo. 1. (11) The plaintiff was and is not without a remedy at law. An appeal from the judgment in the insanity proceedings in the county court could have been prosecuted to the circuit court of Lawrence county. R. S. 1909, section 3956. A writ of error from the circuit court could have been prosecuted at any time, as a matter of right, within ninety days from the judgment in the insanity proceedings. R. S. 1909, sections 2055 and 2056. The effect of the judgment in the insanity proceedings was to subject plaintiff to confinement and treatment in the state hospital, and the law provided for his discharge therefrom by the superintendent thereof when in the judgment of that official the reason of plaintiff was restored. R. S. 1909, Section 1404. FARRINGTON, J.-The plaintiff brings this cause. to this court on the action of the trial court in sustaining a general demurrer to his petition, which petition reads as follows: "Comes now the plaintiff, Joseph M. Painter, and for his amended cause of action represents and shows to the court that on the-day of January, 1917, the defendant filed an affidavit in the County Court of said Lawrence County, Missouri, alleging that the plaintiff herein was insane, and thereupon the County Court of said Lawrence County, at a special session of said court, Painter v. Painter. called at the time therefor, issued its process and writ directed to the sheriff of said county under and by virtue of which the said sheriff arrested and took this plaintiff into custody and brought him into said court. That the said County Court further on said day caused a jury of six men to be impaneled and witnesses to be examined to inquire into the sanity of this plaintiff. That plaintiff was at said time and had been for a long time ill and when the sheriff came for him was confined to his home and to his bed. That neither on the trial in said court nor before that time did the physicians who testified, make any physical examination of this plaintiff, nor did any physicians afterward make any physical examination of plaintiff, nor subject him to the tests commonly used, and which are recognized generally by the medical profession as determining the mental condition of one, although plaintiff expected and offered the opportunity for such examination. That plaintiff was not given the opportunity to obtain witnesses he desired to be heard in his behalf. That by the verdict of said jury of six men, so called, in said court, plaintiff was found to be insane, and the said County Court rendered judgment in accordance with said purported verdict, and by its order and judgment committed and sent nlaintiff to the asylum for the insane at Nevada, Missouri. where he was confined for many months. That a physician's certificate was taken by the sheriff and sent by the county court with its order and judgment to the officers of said asylum which certificate stated that plaintiff was affected by insanity due to the use of drugs. That in deed and truth this plaintiff was not at said time addicted to the use of drugs, either opium, morphine or similar drugs, nor did he use them. Plaintiff further states that at the time of the institution of said proceedings and at all times since, he Painter v. Painter. was and has been sane and in the full and complete use and enjoyment of all his mental faculties. That at the time of the institution of said proceedings and the prosecution and course of the said trial and the return of the said verdict and the rendition of the said judgment therein, and all the proceedings thereunder, the said County Court had no power nor authority nor jurisdiction to entertain, take cognizance of hear or take any action, issue any process or make any orders whatever in or about said proceedings to determine the sanity or insanity of this plaintiff and all of the acts, proceedings, writs, process, orders, in or about or touching the said matter and the verdict returned and the judgment rendered, were and are null and void. Plaintiff further states that he is a physician and surgeon and for many years prior to the said proceedings had been practicing his profession, and had enjoyed a good reputation as a physician and surgeon, and a remunerative practice therein, and the plaintiff has no other means of support than the practice of his profession, and that since his discharge, defendant and her relatives, for the purpose of injuring plaintiff and preventing him from pursuing his said profession, have spread reports that the plaintiff had been adjudged insane and is therefore not a proper person to be employed as a physician and surgeon. Plaintiff further states that the existence of said judgment and the said acts have cast such a shadow and cloud upon plaintiff, as to a large measure destroy his usefulness in the practice of his profession, and deprive him of the means of making a living. law. That plaintiff is without any adequate remedy at Wherefore, he prays the decree of this court, that the said judgment and all acts, proceedings, writs, process and orders in the said County Court in and about the said matter he declared void, annulled, and for naught held and that his status, to such an extent as Painter v. Painter. may thereby, be restored, and for all equitable relief to which plaintiff may be entitled in the premises." 1. In appellant's statement of his case he submits. that its determination will depend upon the construction to be given section 34, Article 6, of the Constitution, in which he contends that exclusive jurisdiction to inquire into and adjudge persons of unsound minds is vested in the probate courts of this State. He also mentions in his statement that a question of defect of parties was raised in the trial court. The respondent points to Section 1411, as amended in 1911, Session Acts, page 115, and the new section passed in lieu of Section 1411 as shown on page 182 of the Laws of Missouri of 1919, and to Section 36, Article 6, of the Constitution of Missouri, as authority for the action of the County Court of Lawrence County in finding that the plaintiff was of unsound mind and that he had not an estate sufficient to support him at a State hospital. The statement of facts contained in plaintiff's petition, and relied upon as a cause of action, is without precedent so far as the briefs of attorneys disclose and the independent investigation made by this court. Appellant relies principally upon the argument that the case of Redmond v. Railroad, 225 Mo. 721, 126 S. W. 159, holds that the exclusive and sole jurisdiction to investigate the sanity of citizens of Missouri is vested in the probate courts under the Constitution. However, on reading that case we conclude that on this question the Supreme Court merely held that the legislature could not deprive the probate courts of Missouri of the jurisdiction to try insanity cases. This case, or no cases cited by appellant go to the extent of holding that exclusive jurisdiction if this particular is given by the Constitution to the probate courts. On turning to the Constitution again, to ascertain the authority given the county courts under Section 1411, as amended, to Section 1423, Revised Statutes of 1909, we find 206 M. A.-21 |