Roseman v. Roseman.

MONTGOMERY, J., dissenting. By the will of Tobias Kessler, one Woodson was appointed trustee, and certain real and personal property was devised to be held by him in trust to be kept invested, and the income paid to A. I. V. Newsome, a married woman, during her life, and at her death the principal to be paid over to her issue; and certain other property was to be held by him on similar trusts for other beneficiaries named in the will. Woodson refused to accept the trust, and this proceeding was begun before the Clerk 1 December, 1897, for the appointment of a substituted trustee. The nature of the trust is not of the kind which being based upon confidence in the personal discretion vested in the trustee, fails upon the death or refusal of the trustee. The mere absence of directions in the will as to the nature of the investment does not make the trust a discretionary (496) one in the sense that the courts can not appoint a new trustee. The Clerk dismissed the proceedings, on the ground of want of jurisdiction, and an appeal was taken to the Superior Court, and by consent of plaintiffs and defendants, was heard before McIver, J., at May Term, 1898, of Rowan. At that hearing the only contention besides the objection to jurisdiction was whether there should be only one trustee or two or three, and who should be appointed. The answer filed by A. I. V. Newsome consented to the appointment of a substituted trustee, but asked for a separate trustee for her interest in the property. The Judge sustained the jurisdiction, and appointed only one trustee (Coghenour) in the stead of Woodson, to discharge all the trusts declared in the will. The new trustee gave bond in the sum of $75,000. From this judgment no appeal was taken. At August Term, 1899, a further decree was made in the cause by consent expressed in the face of the judgment, said A. I. V. Newsome being represented by her counsel, Theo. F. Kluttz, Esq., containing instructions to said Coghenour as to the management of his trust, allowance of commissions, and filing his annual account. At February Term, 1900, a motion was made, upon notice, to set aside the judgments at May Term, 1898, and Fall Term, 1899. This being refused, the movers appealed.

They contend, first, that the Clerk had no jurisdiction of the proceeding to appoint a new trustee, except when the original trustee had been named in a deed (Code, Sec. 1276), and therefore the judgment taken in the Superior Court May, 1898, though not appealed from, and the judgment at August Term, 1899, though entered by consent, are void. The Superior Court undoubtedly had authority, under its general equity jurisdiction, to appoint a new trustee to prevent the failure of the trust, if the proceeding had begun by writ returnable to the Superior Court, and even if no writ whatever had been (497) served, if the parties in interest appeared generally; and that is the case, in effect, here, since no appeal was taken. Even if an appeal had been taken from such judgments, it would be an anomaly if a party sued before the Clerk, who is a part of the Superior Court, could, on appeal to the Judge, have the action dismissed, and thus require the plaintiffs to come right back into the identical court from which they have been dismissed, and in which the cause was originally brought before the Clerk of the Court. To prevent such useless countermarching, the General Assembly, by Chap. 276, Laws 1887 (incorporated in sec. 255, Clark's Code [3 Ed.]), provides: "Whenever any civil action or special proceeding begun before the Clerk of any Superior Court shall be, for any ground whatever, sent to the Superior Court before the Judge, the said Judge shall have jurisdiction," and requires the Judge to proceed to hear and determine all matters in controversy in such action, unless he shall deem it in the interest of justice to send the case back for further action before the Clerk. This section has been repeatedly sustained. Faison v. Williams, 121 N.C. 152; Ledbetter v. Pinner,120 N.C. 456; Lictie v. Chappell, 111 N.C. 347. Counsel replied upon Brittain v. Mull, 91 N.C. 498, but it was to cure the inconveniences caused by that decision that the above amendment to Code, sec. 255, was enacted. That decision itself recognized (page 504) that the Clerk in special proceedings, as well as in other cases, was a part of the Superior Court, and that matters before the Clerk were in the Superior Court. The Judge in this case might have sustained the Clerk's judgment, but he took jurisdiction, as the statute authorized him to do.

It is also contended that the judgment is irregular because the husband of A. I. V. Newsome was not a formal party to the action. But it appears upon its face that the judgment was by consent as to her. It is averred, and not (498) denied, that she is a free trader, and the judgment fastens no personal liability upon her. Hence McLeod v. Williams,122 N.C. 451, relied upon by defendant's counsel, is not in point, for that holds that "a personal judgment can not be rendered against a married woman, not a free trader, for her husband's debt." It is true that being a free trader affects the liability of a married woman for her contracts, and does not affect the manner of service of summons upon her. But, when she has assented to a judgment not involving a personal liability if she be a free trader, she surely can not plead that she is not bound by such judgment when she would be bound by a mere contract. Grantham v. Kennedy,91 N.C. 148; Neville v. Pope, 95 N.C. 346; Green v. Branton, 16 N.C. 504.

It is further objected that the husband of Dora S. Goodman should have been made a party, but she was at the time an infant, without general guardian, and appeared by her duly appointed guardian ad litem, as required by Code, sec. 181, and is estopped by the judgment.

The last objection is as to service of summons upon the children of Mrs. Newsome under fourteen years of age. Summons was served by delivering a copy to each of them personally, as prescribed by Code, sec. 217 (2). A guardian ad litem was regularly appointed. Summons was served upon him, and he filed answer. The statutory requirement has been sufficiently complied with. The objection that copy of the summons was not also left with the "father, mother, or guardian" is a refinement, and can not invalidate the judgment when a guardianad litem has been duly appointed, and has filed answer, and there is no suggestion of fraud most especially when (as in this instance) the mother is a party to the action, has filed her answer consenting to the only relief asked, the (499) appointment of a substituted trustee, and has filed a consent judgment.

Affirmed.