Orr v. . Beachboard

BhogdeN, J.

Can a guardian ad litem be appointed for a sane person, and is the act of such guardian ad litem in conducting litigation for such person binding?

The plaintiff instituted an action against the defendant alleging a misappropriation of money. The defendant filed an answer denying the allegations of the complaint. Thereafter the defendant was adjudged insane and confined in the State Hospital at Baleigh. His wife was duly appointed his general guardian. On 11 May, 1929, the defendant was discharged from the hospital in accordance with C. S., 6214, upon the ground that he was then of sane mind. Subsequently, in June, 1929, without notice to the defendant or his general guardian, and without having the general guardian removed as provided in 0. S., 2158, the court proceeded to appoint a guardian ad litem to defend the action for and in behalf of defendant. The guardian ad litem so appointed undertook to accept service of notice of the taking of deposition and appeared at the taking of said deposition, said deposition being taken at the instance of plaintiff. C. S., 451, empowers the court to appoint a guardian ad litem for infants, idiots, lunatics, or persons non compos mentis. Therefore,' at the time the guardian ad litem was appointed the defendant did not fall within the classification provided in the statute, and there was no authority or warrant of law for such appointment. C. S., 1810, requires notice to take deposition to be “served upon the adverse party or his attorney” by the party at whose instance such deposition is taken. The case at bar discloses that no such notice was given and the deposition objected to in apt time should have been excluded from consideration by the jury.

A motion to dismiss the appeal was lodged by the plaintiff, but it appears that certain stipulations of counsel attached to the record preclude the granting of such motion.

New trial.