In Re Cook

Inquisition of lunacy.

On 30 April, 1940, Mrs. Grace I. Cook, wife of James E. Cook, filed affidavit with the clerk of the Superior Court of Iredell County that she believed her husband to be insane and a fit subject for admission into the State Hospital for the Insane. Her affidavit was accompanied by a questionnaire signed by two physicians of Mooresville, N.C. such, in form, as is prescribed in C. S., 6196.

Acting upon this information, the clerk duly issued his precept or writde lunatico inquirendo, and a hearing was had on 6 May. The respondent, through counsel, entered a special appearance and moved to dismiss the inquiry for want of proper notice and for proper service of process. The motion was overruled. Counsel then moved for a continuance. This was denied.

Upon hearing the evidence, the clerk found the respondent to be a fit person for commitment to the State Hospital at Morganton for care and treatment, and accordingly entered an order to this effect. On appeal to the Superior Court, the order of the clerk was approved and confirmed.

Respondent appeals, assigning as error (1) the failure to dismiss for want of sufficient evidence to support the clerk's order, and (2) the refusal to grant a hearing de novo on appeal to the Superior Court. The record discloses a proceeding in accordance with the provisions of Art. 3, ch. 103, of the Consolidated Statutes, which, in strictness, seems to be neither a civil action nor a special proceeding, notwithstanding C. S., 391. McIntosh on Procedure, 96.

It is not contemplated that there should be a jury trial of the issue in a matter of this kind. A justice of the peace may take the evidence and act in case of emergency, when for any reason the clerk is not immediately available. C. S., 6195. No guardian is sought to be appointed to manage the property of the respondent, and hence the provisions of C. S., 2285, are not presently applicable.

Moreover, there is no provision for an appeal form the order of the clerk to the Superior Court in a proceeding under this article. Whethercertiorari would be available is not presented. In re Sylivant,212 N.C. 343, 193 S.E. 422. The respondent may not call to his aid the provisions of C. S., 2302. There was evidence to support the order of the clerk.

Affirmed.