#### In the Matter of the Insanity of Emma Bresee.

1. Insanity: habeas corpus : jurisdiction. The district court lias authority in proceedings upon a writ of *habeas eorpus*issued upon the petition of one adjudged by the county commissioners to be insane, and ordered to the asylum, to determine the question, whether the petitioner is a fit subject for treatment in the asylum * for the insane.

2. -:-: review on appeal : record. To entitle a party to a review of the finding of the court in such proceedings upon appeal on the question of insanity the evidence produced upon the hearing must be presented in the record in the supreme court.

3. ---:-: trial by jury : former adjudication. Pending an appeal from the decision of the county commissioners adjudging her insane and committing her to the asylum, the petitioner obtained a writ of *habeas corpus*from a judge of the district court in vacation, and on a hearing before him the decision of the commissioners was sustained. At the succeeding term of the district court, the court, on the motion of counsel for the state, refused the petitioner a trial to a jury, affirmed the order of the commissioners, and dismissed the appeal. *Held,*that the petitioner was not entitled to a trial by jury upon the issue of her insanity ; that the decision of the judge in the *habeas eorpus*proceeding was an adjudication of that question, and that the appeal was, therefore, properly dismissed in fiarmony with that decision.

4. -:. practice : disposal . of case on motion. The proceedings and orders in the *habeas eorpus*proceeding being of record in the district court, *held,*that the court could properly, dispose of the appeal on motion.

5. --: -: ---: commitment to asylum. Upon the dismissal of the appeal the court made an order committing the petitioner to the asylum. *Held,*that the court should have left the petitioner under the order of the judge who heard the *habeas eorpus*proceeding, to be dealt with under the order of the commissioners, and that the supreme court would remedy the objection to the order of the district court by such a modification thereof as to simply dismiss the appeal.)

*574'6. ---: COMMISSION FOR EXAMINATION OF INSANE PERSONS: POWER of supreme court to appoint. The supreme court will not on an appeal from llie district court appoint a commission, as provided by section 1442 of the Code, for the examination of one alleged to be unlawfully detained in an asylum as insane, where the proceedings wherein the appellant was adjudged insane appear, so far as the 'record discloses, to have been legal and regular, and the findings are fully supported by the evidence. Whether the court would have authority to appoint such a commission in any event, *qucere.*

*Appeal from Harrison District Qourt.*— Hon. G. W. Wakefield, Judge.

Friday, May 22, 1891.

In July, 1890, tlie commissioners of insanity of Harrison county adjudged Emma Bresee insane, and ' ordered her committed to the asylum at Mt. Pleasant. From the action of the commissioners she appealed to ■ the district court,, and thereupon the commissioners directed the supervisors of the county to take charge of and care for her pending the appeal, and she was by the board of supervisors placed in the custody of W. A. Granger, as its agent. On the second day of August she obtained a writ of *habeas .corpus*from Hon. George Carsok, district judge, directed to the board of supervisors and W. A. Granger, and on the return of said writ, J. S. Dewell, as county attorney for Harrison county, appeared and answered, “setting up the finding of the said board of commissioners, and the appeal of said cause to the district court, and the right of said board to restrain her pending such appeal.”

Upon the hearing the judge made the following finding and "'order:

“The parties having introduced their evidence, respectively, and the cause being fully submitted and ■considered, it is made to appe..r from the evidence that said Emma Bresee is a person of unsound mind, and is a nroper person to receive care and treatment at the hospital. It is, therefore, ordered and adjudged that the plaintiff, Emma Bresee, be, and she is hereby, *575remanded to the care and custody of the proper officers of said county, as provided by law; whereupon plaintiff •excepts.”

With Hon. G. W. Wakefield presiding, at the ■succeeding term of the court, the county attorney moved for an order to “affirm the order of commissioners, and dismiss the appeal,” assigning as grounds therefor the procuring of the *habeas corpus*and the investigation in pursuance thereof, after the' appeal was taken. At the hearing of the motion the court made the following finding:

“That the record shows that after the appellant herein filed and gave notice of appeal from the findings •of said commissioners she did, on the second day of August, 1890, sue out' a writ of *habeas corpus*before Hon. George Caksow, a judge of the fifteenth judicial district of the state of Iowa, and that a writ of *habeas corpus*was duly granted by said judge, and made returnable before him at Missouri "Valley, in Harrison county, on August 5, 1890. Said cause was then fully heard by said judge, and issue then and there joined by this appellant, as plaintiff, and one W. A. Granger, as an employe and agent of the board of supervisors of said Harrison, county, who then had actual custody of the person of Emma Bresee, the appellant herein, by warrant from the said commissioners, duly issued after said appeal had been taken by said Emma Bresee, as the law. provided. That on said hearing the question of the insanity of said appellant, and whether or not she was a fit subject for. custody and treatment in the hospital for the insane, was fully inquired into and decided ; and that said judge did find and determine that said Emma Bresee is a proper person for custody and treatment in the hospital for the insane. And the said judge, at the same time, ordered that she be remanded to the proper authorities for treatment, as provided by law. That all of said proceedings and orders are now on record in this court, as provided by law, as shown in the papers in this matter on file herein, and the records of this court. This court, therefore, finds that all questions on this *576appeal have been fully heard and determined in a manner provided by law,' and that there remains nothing hereafter to be determined in relation thereto.”

The court also ordered that Emma Bresee be confined in the hospital, in conformity with orders previously made. Two appeals are prosecuted by Emma Bresee, — one from the judgment of Judge Cabsow i the *habeas corpus*proceeding ; and one from the judgment of Judge Wakefield on the motion to affirm and dismiss the *appeal.*

Affirmed.

*L. Brown*and *Geo. F.*Boulton, for Emma Bresee.

*J. 8. JDewell*and *John A.*Berry, County Attorney* for appellee.' '

G-kaNG-eb, J.

I. The assignments of error relating to the appeal from the judgment of Judge Cabsok in i. insahitt: ■ PMs:'fiu'?stion-
      *habeas corpus*proceedings are as follows dic- ; *“First.*The judge erred in assuming jurisdiction to • determine the appellant

a fit subject for treatment in the asylum. *Second.*The judge erred in adjudging her a fit subject for treatment in the insane‘asylum.” The former assignment relates to the authority of the judge to act; the latter, conceding the authority, to the validity of the acts. The only claim, as we understand, for the first assignment is that the judge had no authority to determine that Mrs. Bresee was a fit subject for treatment in the insane asylum. The question of her fitness for the asylum depended entirely on the fact as to her sanity. The statute giving to a person “confined as insane” the benefits of the writ of *habeas corpus*provides that at the hearing “the question of insanity shall be decided.” Code, sec. 1444. The alleged restraint by the commissioners was the result of a determination by them that she was such a subject. The record in no way indicates to us that any other question was involved in the hearing before Judge CaesoN, and the inquiry and determination-was entirely legal.

*577II. The abstract contains no part of the evidence, and we are without any means whatever to determine the review on appeal: record. 2 _.__ correctness of the second assignment. It is said that the appellant had not the means or opportunity to preserve the evidence, there being’ no clerk or reporter; but, notwithstanding, how can we say the court erred without the facts, or the means of knowing them? We are not to presume error because of a difficulty in presenting the record on which it is assigned. It is a law proceeding, and we adjudge error only on an affirmative showing.

III. The appeal from the action of the court, on the motion to dismiss the appeal and affirm the order of 3_._.■ fórmeradju-dicaüon. the commissioners, presents the question whether the adjudication in the *habeas corpus*proceeding operates to deprive the appellant of the right to another trial in the district court on her appeal. It is especially urged, in support of another trial, that the appellant was entitled to a trial by jury in the district court. The determination of this question is important. It is purely a special proceeding, and hence, technically, not a “civil action,” which is defined to be a proceeding in which one party, known as the “plaintiff,” demands against another party, known as the “defendant,” the protection of a private right or the redress of a private wrong. Code, sec. 2505. Being another remedy in a civil case it is a special proceeding. Code, sec. 2507. Special proceed- . ings are not classed as “ordinary” or “equitable” by the Code, and we may now consider its provisions as to what causes are triable by jury. Section 2740 is as follows : “Issues of fact, in an action by ordinary proceeding, must be tried to a jury, unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made.” The issues in this proceeding are “other” than those “in an action by ordinary proceedings,” and, hence, under the letter of the statute, are to be tried by the court. It may be well here to observe that proceedings denominated as “special” have been in this court, where the issues *578below have been tried to a jury; but an examination will show,- we think, that in each of such cases the proceeding, if special at its inception, had so changed in its progress as to present parties plaintiL' and defendant with private rights to be determined, and, hence, became an action by ordinary proceedings.

It is urged that the appellant was entitled to a jury trial in the district court, under the constitutional guaranties that the right of trial by jury shall remain inviolate; and in all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to speedy and public trial by an impartial jury. These provisions are found in sections 9 and 10 of article 1 of the constitution of the state. In *Black Hawk Co. v. Springer, 58*Iowa, 417, this court considered the rights of a person charged with insanity to a 'trial by jury under these provisions of the constitution, and held that they applied “only to criminal prosecutions or accusations for offenses against the criminal law, where it is sought to punish the offender by fine or imprisonment.” It is also there determined that the “ inquest of lunacy ” is not a criminal proceeding. Ch*avannes v. Priestley,*80 Iowa, 316. It thus appears that the constitution does not impair the statutory authority as to how the issues in such a proceeding are to be tried.

With the question of the right of trial by jury disposed of, we are better prepared to consider the action of the court in dismissing the appeal, as that was the effect of the holding. Looking back to the statement of the ^ase, it will be seen that in the *habeas corpus*proceeding Emma Bresee was determined to be of unsound mind, and a proper person for treatment, at the hospital for the insane, upon evidence introduced by the parties. In fact, her sanity seems to have been the only question tried and determined. The case, on its merits, involves no other controversy. If her condition is as it was adjudged to be in the *habeas corpus*proceedings, she is rightly committed to the asylum. The question for us is, having had one trial on the merits of her case, before *579the judge at chambers, is she entitled to another snch trial by him' in court? The merit of the rule to be announced may be better seen by supposing the writ to hare issued by the court, and not by the judge in vacation, and the hearing to have been by the judge sitting as a court. Would the appellant, having on one day submitted her case on its merits to the court in the *habeas corpus*proceeding, be permitted to repeat it the next day, on her appeal, because only of the difference in the kinds of proceedings ? We think not. Without committing ourselves to any undue limitations upon the right of a party to test the legality of his restraint by a resort to the writ of *habeas*corpus, without impairing the right to other and further judicial inquiry, we think, in view of the abundant and liberal provisions of our law for the protection of persons charged with insanity, and its requirement that. in *habeas corpus*proceedings the actual fact as to insanity shall be determined, with the right of appeal from the judgment, that the appellant was not entitled to another trial of the same issue. The contention by the appellant, we think, has been largely induced by the belief that, in a trial on the appeal, she should be entitled to a jury; which fact, if true, would present qriite a different case for consideration.'

IY. It is urged that á motion to dismiss was not the proper method of disposing of the appellant’s case 4 _. practioe. ’ disposal oi ‘ 011 appeal. It appears from the findings, in disposing of the motion, that all the proceedings and orders m the *habeas corpus*proceedings were on file in court, and are so shown by the papers in this proceeding. With this condition of the record, the court could take judicial notice of the facts, and pleadings and proofs were unnecessary to establish them. With the facts thus in the record, the court could act upon a motion in dispos-. ing of the appeal.

Y. After the ruling on the motion to dismiss the appeal, the court made an order committing the *580appellant to the insane hospital at Mt. Pleasant. It is said, that the court was without jurisdiction to make the order; that commitment to dsyium. the commissioners alone have such authority, except alter trial on appeal in the district court. The appeal was dismissed because of the conclusiveness of the findings and orders in the *habeas corpus*proceeding. The order in that proceeding was that “Emma Bresee be, and she is hereby, remanded to the care and custody of the proper officer of said county, as provided by law.” The legal effect of dismissing the appeal, without other . orders, would have been to leave her under the order of Judge Caesok, to be dealt with under the order of the commissioners, and such a course would have been entirely proper. The order of the district court is not different in effect, but the objection is that it was made without authority, and that she should not be committed by virtue of it. Any force the objection has will be avoided by such a modification in this court of the order of the district court as to merely dismiss the appeal. This we may do where the facts are settled, and the effect is to enter such an order as the district court should have made. *Gilmore v.*Ferguson, 28 Iowa, 422; *Shaw v.*Nachtwey, 43 Iowa, 653 ; Code, sec. 3194.

YI. We are asked, in casé our conclusion should be against the appellant on questions presented, to 6.-: commission for examination of insane-persons: power of supreme court to appoint. appoint a commission under the provisions of Code, section 1442, to inquire into the fact of the appellant’s sanity ; and rule 7 of this court is cited as authority for us to so act. The section authorizes the judge of the district court, under certain conditions, to make such an appointment, but confers no such authority on this court. Buie 7 provides that “the supreme court has a general supervision over the district and superior courts, and all other inferior judicial tribunals, to prevent and correct abuses,” etc. Withont even intending a ground for inference that we could, with the facts otherwise, make such an appointment, we may say that the record fails to make any showing of abuse for us *581to correct or prevent. Tlie argument proceeds largely upon a claim of abuses and illegalities, but the record is a plain showing of two separate inquiries, under the forms of law, as to the sanity of the appellant, — one by_ the commissioners sitting as a board, and the other by a judge of the district court; the findings of each being, upon evidence submitted, that the appellant is insane, and a proper subject for hospital treatment. .Nothing in the record affords even a suspicion that the proceedings were not legal and regular, and the findings are fully supported by the evidence. If the facts are otherwise, the mistake is in presenting a record from which the facts are hot to be known. We may properly and .profitably look to arguments to aid our conclusions from the record, but we cannot look to them for facts which it is the province of the record to disclose.

The order entered in this court, October 20, 1890, at the instance of the appellant, is revoked, and the judgment on both appeals, with the modification indicated, ÍS AEEIEMED. ,