MOORE, J., took no part in the consideration or decision of this case.
A proceeding for partition, as here entitled, was instituted in 1953. In 1954 a default judgment was entered and sale for partition ordered. The property was offered for sale several times and resales ordered because of increased bids. A sale was made 1 March 1955 at which time a bid of $9,600 was offered. This sale was confirmed and the commissioner was directed to convey upon payment of the purchase money. Following this order the assignee of the successful bidder moved for a survey to determine the boundaries separating the land owned by Daniel Lewis individually from the land sold. The motion also asserted that Daniel Lewis had cut valuable timber from the property sold and, should be required to account for the timber cut and enjoined from further cutting. In May 1955 Lewis was cited for contempt for violation of an order enjoining him from cutting timber. He was found in contempt and imprisoned. An affidavit was thereupon filed by a disinterested person stating that Daniel Lewis was old, infirm and unable to properly conduct his defense. A guardian ad litem was appointed.
Daniel Lewis thereupon employed counsel. They filed a motion asserting no proper process had ever been served on Daniel Lewis, and for that reason the orders theretofore entered were void. This motion was overruled and the questioned service adjudged valid. On appeal, Judge Williams, in September 1955, affirmed the adjudication as to service, but permitted Lewis to answer. Pursuant to the permission given, an answer verified by Lewis was filed. It denied the asserted cotenancy and asserted the lands were owned solely by Daniel Lewis and the heirs of Willie Lewis. Process was served on the heirs of Willie Lewis by publication. A guardian ad litem was appointed to represent them.
On 28 July 1956 a consent order was entered which recites that Daniel Lewis had withdrawn his objection to confirmation of the $9,600 bid. The controversy as to ownership was, by the order, transferred to the fund and the cause placed on the civil issue docket. A reference was ordered. The referee conducted hearings, made his report including findings of fact and conclusions of law. Daniel Lewis testified at these hearings. The report was filed 19 January 1958. At the April 1958 Term Judge Frizzelle modified the findings and as modified confirmed the report and rendered judgment decisive of the rights of the parties. No exceptions were taken to that judgment. The clerk thereupon distributed the purchase monies paid to him in July 1956. His report showing distribution was confirmed 12 May 1958.
In June 1958 Daniel Lewis, acting through his present counsel filed two motions to set aside the orders for the sale and confirmation. Answers were filed by all interested parties. Judge Moore heard the motions, made findings of fact, and denied the motions. Daniel Lewis excepted and appealed.
RODMAN, J.
The motions to set aside the orders of sale and confirmation are based on these assertions: (1) Daniel Lewis was at all times competent to manage his affairs; hence the order appointing a guardian to act for him was invalid, rendering all subsequent proceedings void. (2) The heirs of Willie Lewis had not been properly served with process and, as they were necessary parties, the court was without power to direct a sale.
These motions were not verified by Daniel Lewis, but by one of his present attorneys. Daniel Lewis made an affidavit which recites the employment of present counsel with plenary power to act for him, confirming in advance any action they might take in his behalf. The affidavit contained this statement: "(T)hat since the entry of the purposed judgment in this cause by Honorable J. Paul Frizzelle at the April Term, 1958, affiant has been represented in the instant cause solely by Messrs. Taylor and Mitchell and has not authorized any other attorney or attorneys to represent him; that any acts or representations of any attorney or attorneys subsequent to the entry of the above mentioned purported judgment, other than by Messrs. Taylor and Mitchell, have not been authorized by affiant, and are not the acts or representations of affiant or on behalf of affiant." The only action taken subsequent to the judgment of April 1958 was the distribution of the purchase money in conformity with the provision of that judgment.
By statute, G.S. 1-65.1, the court is under a duty to appoint a guardian ad litem for infants, idiots, lunatics, or non compos defendants who have no general guardian.
An inquisition to determine the sanity of the defendant is not a condition precedent to the appointment. In re Dunn, 239 N.C. 378, 79 S.E.2d 921. It may be made upon application of any disinterested person or by the court on its own motion. 44 C.J.S. 307, 308. "This is necessary, because of his presumed lack of discretion and want of capacity to understand and manage his own affairs." Tate v. Mott, 96 N.C. 19.
As said in Morris v. Russell, 26 A.L.R.2d 947: "The rule requiring guardians for incompetents is for their protection. Its purpose is not to burden nor hinder them in enforcing their rights; nor to confer any privilege or advantage on persons who claim adversely to them or who may be trying to take advantage of them."
As the court has the power to appoint, it has the power to remove. Tate v. Mott, supra; Abbott v. Hancock, 123 N.C. 99; and when timely objection is made by the alleged incompetent, the court should afford him ample and adequate opportunity to be heard with respect to the need for a guardian ad litem and the fitness of the appointee. Graham v. Graham) 240 P.2d 564.
Here the appointment was made after movant had been sentenced to jail for contempt of court. The application for the appointment was not made by a party to the litigation but by a minister who swore movant was, on account of age, incompetent and "utterly innocent of court proceedings." Movant also filed an affidavit stating "I am an old colored man, utterly ignorant of Courts and Court proceedings."
The appointment was made in July 1955. The motion to vacate the appointment was made in June 1958.
It is not suggested that the appointee was incompetent or interested in the litigation.
By the intervention of the guardian ad litem a default judgment was vacated and movant was permitted to answer. Judge Moore found: "From this point (order permitting the filing of answer) Daniel Lewis defended the action in his own name, and the guardian ad litem took no further part in the proceedings."
In view of this finding, supported as it is by the evidence, the mere failure of the court ex mero motu to enter and order vacating the appointment cannot be held to have prejudiced the rights of movant. Such a holding would substitute formality for practicality.
If movant were here complaining of a loss of rights resulting from the abdication and inaction of the guardian, the finding would justify remedial action for the protection of his ward. But movant does not complain of inaction. He merely asserts the appointment was not authorized. He nowhere indicates how the appointment prevented him from asserting his rights. It follows that the court correctly denied the motion based on the assertion that the appointment of the guardian ad litem made all subsequent proceedings void or irregular. Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479.
The findings of the referee, confirmed on appeal, established a cotenancy. The owners were before the court. This gave the court power to order the sale.
The findings of the referee, confirmed on appeal, negative the assertion now made by movant that. Willie Lewis or his children have an interest in the property. This finding is beneficial to movant. It enlarges his share in the property. If, as movant now asserts, there are outstanding rights, they must speak for themselves. Movant does not assert any authority to speak for them. That their rights might be affected does not make him a party aggrieved. In re Application for Reassignment, 247 N.C. 413, 101 S.E.2d 359; Gregg v. Williamson, 246 N.C. 356, 98 S.E.2d 481; Templeton v. Kelley, 216 N.C. 487, 5; S.E.2d 555; Casualty Co. v. Green 200 N.C. 635, 157 S.E. 797.
Affirmed.
MOORE, J., took no part in the consideration or decision of this case.