1. The trial court did not err in dismissing the plaintiff's petition seeking to have the adjudication of insanity set aside for an alleged defect appearing on the face of the record.
2. Where a person is committed to the Milledgeville State Hospital as the result of an order of an ordinary based upon the findings of a lunacy commission and later released was proved," until he is restored as provided by law a presumption exists that his insanity continues, but the presumption is rebuttable with the burden upon the party contending that such person is sui juris.
On June 7, 1957, James Floyd Troutman was adjudged a fit subject for the Milledgeville State Hospital upon a petition filed on that date. He was admitted to the hospital on that date and released as "improved" on July 17, 1957.
In May, 1965, Gloria Dominy Troutman filed a petition seeking a divorce from James Floyd Troutman. A copy of her petition was delivered to the defendant by the Sheriff of Worth County on May 26, 1965. Thereafter, the defendant's mother as next friend filed a response in which it was alleged that the defendant was insane based upon the adjudication of June 7, 1957, and therefore there had been no valid service of the divorce action.
While such petition was pending, on September 29, 1966, the plaintiff filed a petition in the superior court seeking to set aside the original adjudication of James Floyd Troutman's insanity on June 7, 1957, because of a defect appearing on the face of the record in such case. The defect alleged was the failure to give James Floyd Troutman ten days notice of the application for the appointment of a lunacy commission. A final judgment was rendered on such petition refusing to set aside the judgment. Thereafter, the trial court, upon hearing the issue made in the divorce case, without the intervention of a jury held that "It is ordered and adjudged that the court finds that the Court of Ordinary of Worth County has previously held and adjudicated by order of that court that the defendant is insane and this court now finds said sanity has never been restored, and that defendant is legally insane, and therefore it is the holding of this court that defendant has not been legally served."
The plaintiff appeals, in separate appeals, from the judgments adverse to her in each of the cases.
1. The petition filed in the superior court seeking to have the adjudication finding James Floyd Troutman to be insane set aside is based upon the fact that ten days notice was not given to him and that the application failed to have attached to it an affidavit verified by a physician that he was violently insane and likely to do himself violence.
The Act of 1950 (Ga. L. 1950, p. 14) removed the requirement from Code Ann. 49-604 that such an affidavit of verification be attached to the application for the appointment of a lunacy commission in order to waive the ten days notice to the subject of such investigation. Accordingly, the judgment of the trial court dismissing such petition shows no error.
2. The trial court hearing the issue made in the divorce case, that the service upon the defendant was void since he had been adjudicated insane, held without the intervention of a jury that in view of the adjudication of insanity and no evidence of the defendant having been restored, the defendant is legally insane and the service upon him personally was void. Such holding, based upon the legal adjudication of insanity and no further legal adjudication of the defendant having his sanity legally restored was error.
In a case where insanity has been declared in a lunacy proceeding it is presumed to continue but this presumption is a rebuttable one and not conclusive. See Belk v. Colleas, 207 Ga. 328 (61 SE2d 464)
; English v. Shivers, 219 Ga. 515
, 517 (133 SE2d 867
), and citations. The burden in such a case is upon the party contending sanity. The evidence disclosed that after the defendant was adjudged insane and committed to the Milledgeville State Hospital he was released with his mental condition recorded as "improved," that thereafter, while 'under the treatment of a physician and as a patient in the psychiatric ward of the hospital in Albany from time to time, he had worked on a civil service job in the intervening years since such release, was "all right" unless crossed, and that there had been no substantial change in his mental condition since his release. Under such evidence a finding that the defendant was legally insane as a result of the prior lunacy proceeding was not demanded as a matter of law as held by the trial court.
Judgment reversed in case No. 24306 and affirmed in case No. 24308. All the Justices concur.