Moore v. Lewis

108 S.E.2d 26 (1959)

250 N.C. 77

Flora Trudy MOORE (Widow), Carrie Moore and husband, et al., v. Daniel LEWIS and wife, Lillie Lewis, et al.

No. 174.

Supreme Court of North Carolina.

April 8, 1959.

*27 Taylor & Mitchell, Raleigh, for defendant-appellant.

Clark, Clark & Grady, Elizabethtown, for appellees Turnell and Morgan.

Corbett & Fisler, Burgaw, and Isaac C. Wright, Wilmington, amici curiae.

RODMAN, Justice.

The motions to set aside the orders of sale and confirmation are based on these *28 assertions: (1) Daniel Lewis was at all times competent to manage his affairs; hence the order appointing a guardian to act for him was invalid, rendering all subsequent proceedings void. (2) The heirs of Willie Lewis had not been properly served with process and, as they were necessary parties, the court was without power to direct a sale.

These motions were not verified by Daniel Lewis, but by one of his present attorneys. Daniel Lewis made an affidavit which recites the employment of present counsel with plenary power to act for him, confirming in advance any action they might take in his behalf. The affidavit contained this statement: "(T)hat since the entry of the purported judgment in this cause by Honorable J. Paul Frizzelle at the April Term, 1958, affiant has been represented in the instant cause solely by Messrs. Taylor and Mitchell and has not authorized any other attorney or attorneys to represent him; that any acts or representations of any attorney or attorneys subsequent to the entry of the above mentioned purported judgment, other than by Messrs. Taylor and Mitchell, have not been authorized by affiant, and are not the acts or representations of affiant or on behalf of affiant." The only action taken subsequent to the judgment of April 1958 was the distribution of the purchase money in conformity with the provision of that judgment.

By statute, G.S. § 1-65.1, the court is under a duty to appoint a guardian ad litem for infants, idiots, lunatics, or non compos defendants who have no general guardian.

An inquisition to determine the sanity of the defendant is not a condition precedent to the appointment. In re Dunn, 239 N.C. 378, 79 S.E.2d 921. It may be made upon application of any disinterested person or by the court on its own motion. 44 C.J.S. Insane Persons § 143(b) 307, 308. "This is necessary, because of his presumed lack of discretion and want of capacity to understand and manage his own affairs." Tate v. Mott, 96 N.C. 19, 2 S.E. 176, 177.

As said in Morris v. Russell, 120 Utah 545, 236 P.2d 451, 455, 26 A.L.R.2d 947: "The rule requiring guardians for incompetents is for their protection. Its purpose is not to burden nor hinder them in enforcing their rights; nor to confer any privilege or advantage on persons who claim adversely to them or who may be trying to take advantage of them."

As the court has the power to appoint, it has the power to remove, Tate v. Mott, supra; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268; and when timely objection is made by the alleged incompetent, the court should afford him ample and adequate opportunity to be heard with respect to the need for a guardian ad litem and the fitness of the appointee. Graham v. Graham, Wash., 240 P.2d 564.

Here the appointment was made after movant had been sentenced to jail for contempt of court. The application for the appointment was not made by a party to the litigation but by a minister who swore movant was, on account of age, incompetent and "utterly innocent of court proceedings." Movant also filed an affidavit stating "I am an old colored man, utterly ignorant of Courts and Court proceedings."

The appointment was made in July 1955. The motion to vacate the appointment was made in June 1958.

It is not suggested that the appointee was incompetent or interested in the litigation.

By the intervention of the guardian ad litem a default judgment was vacated and movant was permitted to answer. Judge Moore found: "From this point (order permitting the filing of answer) Daniel Lewis defended the action in his own name, and the guardian ad litem took no further part in the proceedings."

*29 In view of this finding, supported as it is by the evidence, the mere failure of the court ex mero motu to enter an order vacating the appointment cannot be held to have prejudiced the rights of movant. Such a holding would substitute formality for practicality.

If movant were here complaining of a loss of rights resulting from the abdication and inaction of the guardian, the finding would justify remedial action for the protection of his ward. But movant does not complain of inaction. He merely asserts the appointment was not authorized. He nowhere indicates how the apointment prevented him from asserting his rights. It follows that the court correctly denied the motion based on the assertion that the appointment of the guardian ad litem made all subsequent proceedings void or irregular. Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R.2d 780.

The findings of the referee, confirmed on appeal, established a cotenancy. The owners were before the court. This gave the court power to order the sale.

The findings of the referee, confirmed on appeal, negative the assertion now made by movant that Willie Lewis or his children have an interest in the property. This finding is beneficial to movant. It enlarges his share in the property. If, as movant now asserts, there are outstanding rights, they must speak for themselves. Movant does not assert any authority to speak for them. That their rights might be affected does not make him a party aggrieved. In re Applications for Reassignment of Pupils, 247 N.C. 413, 101 S.E.2d 359; Gregg v. Williamson, 246 N. C. 356, 98 S.E.2d 481; Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Fidelity & Casualty Co. of New York v. Green, 200 N.C. 535, 157 S.E. 797.

Affirmed.

MOORE, J., took no part in the consideration or decision of this case.