Strickland v. Strickland

1. A lunatic, or person non compos mentis, having no legal guardian, may sue by any competent person as his next friend, and the authority of one to act as next friend and to control, direct, and conduct the case being derived from the court, the appointment of a guardian ad litem is not necessary.

2. Where one has been adjudicated a lunatic, or a person of unsound mind, upon an inquisition of lunacy, such mental condition will be presumed to continue until the contrary appears, and the burden is upon him who has recovered a judgment subsequently to such adjudication to show by a preponderance of evidence that such disability did not exist at the time the judgment was rendered.

(a) A judgment of contempt because of a failure to comply with the terms of an order awarding temporary alimony and counsel fees in dependent upon the validity of the order making such alimony allowance.

(b) The evidence being insufficient to overcome the presumption of insanity, it was error to remand the petitioner to jail and to refuse to revoke the order awarding temporary alimony and counsel fees.

No. 15526. SEPTEMBER 7, 1946. On March 25, 1946, Edward T. Strickland, alleging himself to be guardian and next friend of Chester A. Strickland, filed a proceeding in the Superior Court of Jackson County against Mrs. Louise Strickland, and prayed that Chester A. Strickland, then confined in the Jackson County jail, be placed temporarily in his custody and released from his confinement until the court could hear the petition; and also sought to vacate and set aside all of the judgments which had theretofore been granted in the case of Louise Strickland against Chester A. Strickland, being action numbered 2242 in Jackson Superior Court for divorce, alimony, and custody of their minor children. In substance, the petition with its exhibits alleged: On April 8, 1944, Chester A. Strickland was adjudged to be a lunatic, or person of unsound mind, and was committed to the State Hospital at Milledgeville. During the latter part of 1944, he was temporarily released from the hospital and returned to his home. On January 17, 1945, his wife filed suit against him for total divorce, custody of their minor children, and for temporary and permanent alimony. He was served with a copy of the petition, process and nisi, which required him to show cause on February 5, 1945, why the prayers of the petition should not be granted. He made no appearance in response thereto. On February 7, 1945, and order was granted fixing temporary custody of their children in the mother, and requiring him to pay her, for the support of the children, temporary alimony of $17.50 beginning February 10, 1945, and a like amount each two weeks thereafter until the further order of the court; also the sum of $50 as counsel fees, payable by installments of $5 on fixed dates. On November 5, 1945, a contempt proceeding was brought against Strickland by his wife, asking that he be adjudged in contempt because of his failure to comply with the terms of the order for temporary alimony and counsel fees. She alleged that he was then due $192.50 on the allowance for temporary alimony and a balance of $30 on counsel fees. He was served with a copy of that petition and a nisi, which required him to show cause on November 17, 1945, why he should not be adjudged in contempt as prayed. He appeared personally and by counsel, but no plea that he was then insane, or that he was insane at the time the order for temporary alimony and counsel fees was granted, was then filed. In fact, the record is entirely silent as to any reason then given why he had not complied with the order for temporary alimony and counsel fees. He was adjudged in contempt and committed to jail. It was further alleged that the order for temporary alimony and counsel fees and the judgment on the contempt petition should be vacated and set aside, and that Strickland should be released from jail, because both the alimony order and the contempt judgment were rendered at a time when Strickland was insane, and after he had been adjudicated to be a lunatic or person of unsound mind. On presentation of the petition, the court granted an order directing that the petition be filed as a supplemental pleading and intervention in the case of Mrs. Annie Louise Strickland v. Chester A. Strickland, and ordered the respondent, Mrs. Louise Strickland, to show cause before him, at chambers, on March 30, 1946, why the relief prayed should not be granted, and that affidavits and documentary evidence be submitted.

On being served with a copy of the petition and order, Mrs. Strickland responded by admitting that Chester A. Strickland had been adjudged insane and committed to the State Hospital at Milledgeville; but said that at the time of the adjudication "it was more his disposition and temper, rather than a mental condition." She admitted that he was than confined in jail, but for want of sufficient information was unable to say what the condition of his mind was, and stated: that his mind was all right when he returned from the State Hospital during the latter part of 1944, when he was temporarily released and remained all right until "his uncontrolled and ungovernable temper ran away with him;" that she had not talked with him recently, and for that reason did not know what his mental condition was, but she was not inclined to believe that an insane person would be capable of earning $169.50 per month; and that her husband earned as an employee of the Jefferson Mills from January 5, 1946 (1945?), to March 2, 1946 (1945?), $401.22, but he refused to help his children out of his earnings. She insisted that, if her husband was really insane, he should be returned to the State Hospital and not released as a menace to society.

In support of the petition, a copy of a lunacy proceeding from the ordinary's office of Jackson County, adjudicating Chester A. Strickland to be a lunatic or person of unsound mind and committing him to the State Hospital at Milledgeville, dated April 8, 1944, was allowed in evidence.

L. B. Moon testified for the petitioner: He was the Ordinary of Jackson County, Georgia. No proceedings were of file in his office as such ordinary adjudicating Chester A. Strickland restored to sanity; and from conversations with him and other information which the witness had, it was his opinion that such an adjudication should not be made.

The respondent offered the following evidence in support of her contention that Chester A. Strickland was not insane at the time the order and judgment sought to be set aside were rendered:

R. H. Whitlock, a brother of the respondent, testified: For the last several months he had operated the Yonce grocery store in Jefferson, Georgia, which is next door to Smith's cafe. Strickland was a constant, almost daily, visitor at the cafe, and would spend around $4 per week there in a music machine. It was his opinion that the petitioner was trying to show him that he had money, but was not going to help his wife and children. He would invariably place money in the music machine in the presence of the witness in a defiant attitude apparently to show that he was not going to help his children or obey the court's order.

Fred B. Smith testified: For the past few years, until he sold out sometime ago, he had operated a cafe in the City of Jefferson and had in his place of business a nickelodeon or "piccolo." Chester A. Strickland had been almost a daily visitor at this place of business and would spend from $3.50 to $4 per week in the music machine. The witness had not talked a great deal with him, but had been around him almost daily for a long period of time, and had never noticed anything "abnormal" about his mental condition. He sat around, talked, and laughed with the other young men in this place of business and showed no signs of being crazy or mentally unbalanced.

Mrs. Louise Strickland, the respondent, testified: Chester A. Strickland was capable of earning and did earn from $150 to $175 per month, and no insane man can earn that amount of money. Some time ago, when she asked him to help her with the children, he "sarcastically" informed her that he would see her dead and in hell before he would help a dime. From his conduct and conversations with him, she was of the opinion that he is feigning insanity to defeat or defy the court in requiring him to help maintain and support their children.

After hearing all of the evidence, the court found that no sufficient showing had been made that Strickland was instance at that time, or at the time of being adjudged in contempt, and declined to release him from jail. In his judgment it was further provided that, upon the appointment of a guardian for Strickland and upon his qualifying and agreeing to collect his earnings and pay at least half thereof into court on the alimony judgment, and if he would agree to go to work, the court would release him from jail. It was further provided in the judgment that if Strickland should be committed by proper authority again to the State Hospital at Milledgeville, he would be released from Jail under the contempt judgment. From this judgment exceptions were brought to this court for review. 1. A judgment against an insane person is not void, but voidable.Foster v. Jones, 23 Ga. 168. The record here discloses that no guardian was appointed for the petitioner after he had been adjudged a lunatic or person of unsound mind, but a lunatic may sue by next friend where he has no guardian. Dent v. Merriam,113 Ga. 83 (38 S.E. 334); Ross v. Battle, 113 Ga. 742 (39 S.E. 287); Stanley v. Stanley, 123 Ga. 122 (51 S.E. 287); Grinnell v. Grinnell, 174 Ga. 904 (164 S.E. 681). And where suit is brought by next friend, the appointment of a guardian ad litem is not necessary. Reese v. Reese, 89 Ga. 645,651 (15 S.E. 846); Dent v. Merriam, supra; Grinnell v. Grinnell, supra. The authority of one to act as next friend and to control, direct, and conduct the case is derived from the court. Mize v. Harber, 189 Ga. 737, (7), 746 (8 S.E.2d 1). An action by one suing as next friend of another is in substance an action by the latter, and in the absence of demurrer is good. Dent v. Merriam, supra. There was no demurrer here.

2. The provisions of our Code, § 30-204, which authorize the court at any time to revise decrees for alimony, relate to temporary alimony only. any provision made for the support of the wife or minor children by way of temporary alimony is, under that section, subject to revision, modification, or revocation at any time. Hemphill v. Hemphill, 172 Ga. 387 (157 S.E. 637). Where there is no valid legal order for temporary alimony and counsel fees, because the defendant against whom the order issued was insane at the time it was granted, a judgment attaching the defendant for contempt for a violation of the order is also invalid. Robertson v. Robertson, 176 Ga. 602 (3) (168 S.E. 570). The question which we must now determine is whether the order awarding temporary alimony and counsel fees is valid or invalid, since it is attacked upon the ground that the plaintiff here was insane, and had been so adjudicated, at the time it was granted. It will be conceded that, if the order awarding temporary alimony and counsel fees is not valid, then the judgment of contempt necessarily is invalid and the plaintiff should not have been remanded to jail. In the very early case ofTerry v. Buffington, 11 Ga. 338 (5) (56 Am. D. 423), it was stated: "When insanity is once found, upon an inquisition of lunacy, it is presumed to continue; and the onus is cast upon those offering a will, to show that the disqualification has been removed." See also Akin v. Akin, 163 Ga. 18 (135 S.E. 402), and the cases there cited. However, the presumption that a mental state once proved to exist continues may be rebutted by proof. Code, § 38-118; Danforth v. State, 75 Ga. 614 (4) (58 Am. R. 480); Allams v. State, 123 Ga. 500 (2) (51 S.E. 506); Ward v. Miller, 143 Ga. 164 (84 S.E. 480); Geer v.State, 184 Ga. 805 (3) (193 S.E. 776).

The Code, § 35-206, makes provision for the discharge from the State Hospital of an inmate who is regarded harmless and inoffensive in spirit, and whose return to social life would reasonably involve no danger to the life to those with whom he or she would be associated. With this provision of law in force, and the fact that Strickland admittedly had been only temporarily released from the State Hospital, a presumption of insanity would exist as of the time the order for temporary alimony and counsel fees issued. The burden, therefore, was upon the respondent, for whose benefit the order was obtained, to overcome by a preponderance of evidence such presumption of insanity. Allams v. State, supra. By preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue, rather than to the other. Was this burden carried? We think not, and the trial judge did not affirmatively find that it had been. In the response it is stated that the mind of Strickland was all right when he returned from the hospital in the latter part of 1944, but no evidence was offered in support of this contention; and it is further stated in the response that his mind was all right "until his uncontrolled and ungovernable temper ran away with him. "The Ordinary of Jackson County, who presided over the lunacy proceeding and signed the judgment committing Strickland to the State Hospital, testified that there had been no adjudication in his office to the effect that Strickland had been restored to sanity, and that his mind was such that he could not be so adjudged. R. H. Whitlock and Fred B. Smith testified for the respondent as to his reckless expenditure of money, which we think might be a circumstance indicating insanity; and the witness Smith further testified that, while he had not talked with Strickland very much, yet frequently at Smith's place of business Strickland had talked and laughed with other young men, and Smith had seen no signs of his being crazy or mentally unbalanced. This witness, however, did not specifically relate his testimony to the date as of which the order for temporary alimony and counsel; fees was granted. The judgment remanding Strickland to jail provided for his release upon the appointment of a guardian to manager his affairs, or if by proper authority he should again be committed to the State Hospital at Milledgeville. We think, and so hold, that the evidence taken as a whole was insufficient to overcome the presumption of insanity as of the date when the order for temporary alimony and counsel fees was granted; and, since the validity of the subsequent judgment adjudicating him in contempt was dependent upon the validity of that order, the court erred in remanding him to jail and in refusing to revoke the order granting temporary alimony and counsel fees.

Judgment reversed. All the Justices concur.