¶1The plaintiff in error, Sarah E. Gunning, by another person acting in her behalf, filed in the court of common pleas of this county a petition alleging that she was at the time of the filing thereof, and had been from May, 1895, unlawfully restrained of her liberty and imprisoned in Eongview Asylum by Dr. Frank Harmon, the superintendent thereof. It asserts in substance, that in May, 1895, an affidavit was filed in the probate court of this county by her husband alleging that she was insane and a fit subject for the lunatic asylum; that a warrant issued thereon, and that she was arrested by the staff and by order of such court she was commited to said asylum; that the request and commitment were made by the court without any hearing or opportunity upon her part to. be heard by such court and that she was not permitted to confront the witnesses who testified against her, or to call witnesses in her behalf. A copy of the order on judgment filed with the petition simply states that the cause came on to be heard upon the affidavit of James Gunning and testimony of witnesses, and that the court found Mrs. Gunning to be insane and ordered her to be committed to Eongview Asylum.
¶2It does not appear therefrom, or from anything in the case that Mrs. Gunning was present at the inquest, nor is there anything to show that owing to her condition the court on a personal visit to her, and an inspection of her, found that it was improper that she should be brought into court in accordance with the provisions of section 703, Revised Statutes.
¶3It is probable that tbis section does not apply to tbe commitment of insane persons to Longview Asylum, but only to tbe State Lunatic Asylums, as tbe mode of proceeding to commit insane persons to Long-view is regulated by section 738 and post. But these latter sections evidently contemplate an adversary proceeding, witb tbe person charged to be insane present at tbe examination, witb the right to contest tbe question of his or her insanity, and such person should be present and have the rights given by tbe statute.
¶4Whether in the absence of anything in the record to show that she was not present, or was deprived of her rights, it ought not to be presumed that she was so present and-had a fair trial, and that the court acted rightly, is a question of doubt. We incline to the opinion that it should, and that if the case stood on this ground alone, that the action of the court of common pleas in refusing to issue a writ was not erroneous.
¶5But the petition alleges not only that Mrs. Gunning was not insane when the order of commitment was made, but that when the petition in this case was filed she was sane, and not insane.
¶6Section 713, Revised Statutes provides that “all persons confined as insane shall be entitled to the benefit of the writ of habeas corpus, and the question of insanity shall be decided at the hearing; and if the judge decides that the person is insane, such decision is no bar to the issuing of the writ a second time when it is alleged that such person is restored to reason.”
¶7We are of the opinion that when this petition averred that this woman was not now insane, it was the duty of the court to allow the writ to issue, and on the issue made by the return of the writ by the person in whose custody she was (if such issue was made), to hear and determine the question of the sanity of the person at that time; aud that this question could not properly be heard by the court on the application for the writ, as was done here. For this reason the judgment of the common pleas refusing the writ will be reversed.