Abbott v. Hancock
| Decision Date | 18 October 1898 |
| Citation | 123 N.C. 99,31 S.E. 268 |
| Court | North Carolina Supreme Court |
| Parties | ABBOTT . v. HANCOCK. |
Insane Persons—Wipe as Next Friend—Seduction—Pleading—Parties—Collateral Attack.
1. Under Code, § 180, providing that an insane person may appear by his next friend
when he has no guardian, an insane person can sue by his next friend, although there has been no inquisition of lunacy.
2. A wife may sue, as the next friend of her insane husband, for the seduction of their daughter.
3. Where the next friend of an insane person is regularly appointed, the appointment cannot be impeached collaterally by demurrer in an action by the next friend.
4. The next friend of an insane person, being an officer of the court, is subject to removal by its order at any time.
5. Where a husband resides out of the state, the wife may sue in her own name for the seduction of their daughter.
6. The objection of superfluous parties plaintiff cannot be raised by demurrer.
Appeal from superior court, Graven county; Brown, Judge.
Action by Elizabeth Abbott, in her own name and as next friend of her insane husband, against Robert Hancock, for the seduction of their daughter. Judgment for plaintiff, and defendant appeals. Affirmed.
Simmons, Pou & Ward, for appellant.
O. H. Guion, W. W. Clark, Shepherd & Busbee, W. D. McIver, and D. L. Ward, for appellee.
If the wife were suing here in her own right, as a free trader, because of the insanity of her husband, it would be necessary that he should have been declared insane (Code, § 1831); but the right of action for the seduction of the infant daughter is in the father, if living. Scarlett v. Norwood, 115 N. C. 284, 20 S. E. 459; Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397. The allegation of the insanity of the husband is admitted by the demurrer, and an insane person can sue by his next friend, though there has been no inquisition of lunacy. Code, § 180; Smith v. Smith, 106 N. C. 498, 11 S. E. 188. We know of no reason, nor authority, why the wife cannot be his next friend, for the purpose of bringing such action in his behalf. She was regularly appointed next friend by the clerk of the superior court, in the mode prescribed by rule 16 of the superior court (119 N. C. 963, 27 S. E. xv.), and that appointment cannot be impeached collaterally by demurrer. Sumner v. Sessoms, 94 N. C. 371. Nor do we see that the propriety or fitness of the appointment of a next friend can in any way concern the defendant in the action. The next friend is an officer of the court, and subject to removal by its order at any time. Tate v. Mott, 96 N. C. 19, 2 S. E. 176.
It is averred in the complaint, and...
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Khalifa v. Shannon
...him in his affections and the destruction of his household," as said in Scarlett v. Norwood, 115 N.C. 284, 20 S.E. 459; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268; Snider v. Newell, 132 N.C. 614, 623, 624, 44 S.E. The Court of Appeals of Georgia reached a very similar conclusion in Selman,......
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...39, 64 N.E. 1065, 64 L.R.A. 513; Wagner v. Wagoner, 53 Neb. 511, 73 N.W. 937; Kroehl v. Taylor, 69 N.J.Eq. 525, 61 A. 257; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268; Gray v. Parke, 155 Mass. 433, 29 N.E. Stanley v. Stanley, 123 Ga. 122, 51 S.E. 287. In the Isle Case, it was held, upon a m......
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