Opinion · Supreme Court of North Carolina
Moore v. . Gidney
75 N.C. 34
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1876-06-05
- Topic
- bankruptcy
ByNUM, J. When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian, before a guardian ad litem can be appointed, a sum *39 mons must be served upon such infant, and a copy of the complaint also be served or filed according to law. After the guardian ad litem is thus appointed in a special proceeding, a copy of the complaint, with the summons, must be served on the guardian. All this does .not give the Court jurisdiction to proceed at once in the cause; for it is further provided, that not until after twenty days’ notice of said summons and complaint, and after answer filed, can the Court proceed to final judgment and decree therein. Bat.
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UpLaw has not yet analyzed Moore v. . Gidney. The absence of a flag is not a finding that it is good law.
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- 34 opinions
MOOREv. GIDNEY,75 N.C. 34(1876)
A. E. MOORE v. J. W. GIDNEY, ADMINISTRATOR.
Supreme Court of North Carolina
June Term, 1876.
1. When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian before a guardianad litemcan be appointed a summons must be served upon such infants, and a copy ofPage 41the complaint also be served or filed according to law. After the guardianad litemis thus appointed in a special proceeding, a copy of the complaint, with the summons, must be served on such guardian.
2. An administrator filed his petition to sell the lands of his intestate for assets, and had the widow appointed guardianad litem, before the infants were in court by the service of any summons upon them; the widow answered for such infants only, and not in her own right — the attorney for the petitioning administrator drafting and filing her answer; a decree was obtained, and under it the lands were sold. Afterwards the widow became apprised of facts which constituted her equitable right to one of the tracts of land sold under said decree, and she thereupon moved in the cause still pending, to set aside the decree and sale:Held, that the decree thus obtained was irregular, and not binding either upon the infants or widow, and that the sale under such decree should be set aside.
The plaintiff, as guardianad litemof the infant heirs of John L. Moore, deceased, and in her own behalf, moved the (35) court to set aside an order of sale and final decree theretofore made in the cause. The motion was based upon affidavits to the following effect:
That on 10 September, 1874, the plaintiff filed a petition against the heirs of his intestate, J. L. Moore, setting forth, among other things, that deceased was indebted to the amount of $10,000 or $20,000, and that his personal estate was worth from $10,000 to $15,000. That at his death deceased was seized of several tracts of land, and prayed that the same might be sold by order of the court to make assets, etc. On 9 April, the day preceding the filing of said petition, the court made a decree appointing this petitioner guardianad litemof said minor heirs, and she, on 24 September, 1874, not knowing her rights, and in her great distress and trouble, and acting under the advice of the plaintiff and his counsel, was induced to sign an answer in her capacity as guardianad litem, admitting all the allegations of said petition and consenting to the sale as prayed for. This answer was written by the plaintiff's counsel, at his own suggestion, and without fee.
That she never would have consented to the sale of one of the tracts of land, described in the petition as the "Thos. Wilson tract," had she known the effect of such consent, for the reason that she claimed that the said tract was bought with her own money, advanced to her deceased husband with the positive agreement that the deed when made should be made to her and her children, and she is advised by counsel that she is the proper owner thereof, and demands that an issue be made to try the title thereto.Page 42
That on 5 October, 1874, this court made a decree ordering a sale of the lands mentioned in the pleadings for the purpose therein (36) set forth, to be made on 9 November, 1874. That the plaintiff afterwards reported to this court that he had sold the lands on 10 November, and not on the 9th, as he was ordered to do.
That on 16 April, 1875, a decree was made by this court confirming the sale of 10 November, 1874.
That after having been induced to sign an answer as guardianad litemshe was ignorant of all other proceedings in the matter for a considerable time, and was not aware that she could assert her claim to the "Wilson Tract."
Petitioner therefore moved the court to set aside the decree made on 16 April, 1875, confirming the sale of 10 November, 1874, and that the petitioner may be made a party to the cause, as to her rights concerning the "Wilson land," etc.
The plaintiff in the cause filed an answer to this petition, among other thing alleging:
That the decree which the petitioner seeks to set aside was rendered more than one year before this petition was filed and before any notice thereof was issued or served upon the plaintiff.
"That the petitioner became the purchaser of lands sold under said decree, and is estopped from denying the regularity of the decree or sale thereunder."
Upon the hearing the probate court found the following facts:
That there was no undue influence exercised by the plaintiff or his counsel, upon the guardianad litem, in procuring the filing of her answer.
That the administrator reports that he sold the land on 10 November, 1874, but that the sale was actually made on 9 November as ordered by the court.
The court found as conclusions of law:
That the irregularity in the appointment of guardianad(37) litemwas cured by her voluntary appearance and answer.
That Annie E. Moore is estopped by her own voluntary act from denying the title of J. L. Moore to the "Wilson land." That she is not entitled to a jury to try the issue. That she is not entitled to the relief demanded in the complaint.
From this ruling the petitioner appealed to the Superior Court, and upon the hearing his Honor found the following facts: A summons issued on 9 September, 1874, against the minor defendants and against A. E. Moore, guardianad litem, to appear before the clerk of Cleveland County, within twenty days. This summons was only served on Ann E. Moore as guardianadlitem, and not on the heirs. It was served on 10 September, 1874.Page 43
Ann E. Moore was appointed guardianad litemon 9 September, 1874. On 24 September, 1874, Ann E. Moore filed an answer as set forth in the pleadings.
That the facts stated in the affidavit of W. A. Hoke are correct. The following is the affidavit:
"He was attorney for J. W. Gidney in the petition for sale of lands of J. L. Moore. He drew up the answer of the defendant Ann E. Moore as guardianad litemin said petition, and delivered the same to her with the statement that if she had no defense to make to said sale the answer would be sufficient, but that if she desired to resist the sale of said lands she had better employ counsel. That the petitioner Ann E. Moore took the answer and had the same under advisement for some time and the hearing of the cause was delayed to give the present petitioner opportunity to answer and defend the title for sale, if she so desired.
That this affiant never advised the plaintiff in the premises; that petitioner came to affiant in reference to her claim for dower in the lands of John L. Moore, and affiant declined to appear, (38) for the reason that he was of counsel for the administrator of John L. Moore; that affiant never heard of any claim to said land by the petitioner, and is informed and believes that petitioner never set up claim to said land until some time after the sale of the same and the execution of the notes for the purpose money."
The court further found: On the complaint and answer, a decree for sale was made on 5 October, 1874.
On 13 October, 1874, the decree was presented to D. Schenck, judge of the Ninth Judicial District, for approval, which was at first declined, on the ground that no summons was executed on the minor heirs, but it being represented as agreeable to all parties, the decree was affirmed. It was suggested that a summons should yet issue and be served on the heirs. This was done, and the summons was served on them 14 September, 1874. The land was sold for a fair price.
The case now comes up on the petition to set aside the sale of the "Wilson tract," because the plaintiff Ann E. Moore claims the same, and because the decrees are void as to the minor heirs.
The court is of the opinion that the decree for sale, as well as those confirming the same as to all the tracts, and the whole proceedings are void as to the minor heirs, for want of service of process upon them.
From this ruling of the court the defendant Gidney appealed.
In this case the guardianad litemwas appointed before the infants were brought into court by summons. No summons or copy of the complaint was served on them until after the decree of sale. In law, they were undefended. Their rights and property were attempted to be adjudicated upon and taken from them under the sanction of law, but in violation of its letter and spirit. They had no day in court, and, as to them, the proceedings were irregular, and subject to be set aside.
It may be, and it is alleged, that inasmuch as the estate is insolvent, and the proceeds of the sale of lands must all be applied in payment of the debts of the intestate, the infants have no substantial interest to be affected by the decree, and are, therefore, not injured. But as they were not in court, and could not be heard, these alleged facts do (40) not judicially appear to us, and we cannot assume them to be true. What they may be able to show in defense of this proceeding, when they are properly brought in court, and are represented by a guardian, duly constituted, who will discharge his duty to them, we cannot anticipate. Sufficient for the day is the evil thereof.
This application is treated as a motion in the original proceeding for the sale of the land (which action is still pending), to set aside for irregularity the decree of sale and all subsequent proceedings. We have disposed of the case as far as the infants are concerned. We next proceed to examine it so far as it affects the widow herself.Page 45
She filed no answer in her own right, but answered in the right of the infants only. She alleges that she was not, at the time of her answer, apprised of the facts which constitute her equitable right to the largest tract of land, to wit: the Wilson tract. She further alleges that her answer to the petition for the sale of the land was filed for her by the attorney of the plaintiff; and that she was at the time so troubled and distressed in mind by the recent death of her husband, as to be disqualified for business, and thus was induced to assent to the answer, without a knowledge of her rights. These allegations are not directly denied. But it is denied that the counsel of the plaintiff acted as the are satisfied that no improper influence was intended. Yet the law defendant's counsel, farther than in drawing up her answer; and we are satisfied that no improper influence was intended. Yet the law does not tolerate that the same counsel may appear on both sides of an adversary proceeding, even colorably; and in general will not permit a judgment or decree so affected to stand if made the subject of exception in due time by the parties injured thereby. The presumption, in such cases, is that the party was unduly influenced by that relation, and the opposite party cannot take the benefit of it. It does not appear affirmatively in this case that Mrs. Moore, the defendant, was not influenced to her prejudice and thrown off her guard (41) thereby. The purity and fairness of all judicial proceedings should so appear when drawn in question.
Our attention has been called by the plaintiff, since the argument, toWhite v. Albertson,14 N.C. 241, cited inMcAden v. Hooker,74 N.C. 24. That was an action of ejectment, and the plaintiff, in making out his title, introduced in evidence the record of a suit and judgment against the heirs of one Muse, under whom he claimed. There was no service of thesci.fa. upon the heirs, but service was accepted for them byBlount, the guardian. It was held by the Court, that although the service ofscirefaciaswas erroneous, as not having been against the heirs themselves, and that the judgment was therefore voidable, yet it was not void and could not be impeached in thiscollateralway. The case is not an authority for the plaintiff. An irregular judgment may be set aside by adirectproceeding for that purpose. That cannot be disputed, and that is the purpose here. This is a proceeding in the cause where the error was committed and the object of the motion is to vacate and set aside the irregular decree, and sale under it.Wolfe v. Davis,74 N.C. 597.
PER CURIAM. Affirmed.Cited: Molyneux v. Huey,81 N.C. 113;Gully v. Macy, ib., 367;Nicholson v. Cox,83 N.C. 46;Young v. Young,91 N.C. 362;Cates v.Pickett,97 N.C. 27;Lowe v. Harris,112 N.C. 490;Arrington v.Arrington,116 N.C. 179;Cotton Mills v. Cotton Mills, ib., 652;EllisPage 46v. Massenburg,126 N.C. 134;Carraway v. Lassiter,139 N.C. 154;Johnson v. Johnson,141 N.C. 92;Rackley v. Roberts,147 N.C. 205;Hughes v. Pritchard,153 N.C. 141,142;Holt v. Ziglar,159 N.C. 279.