Clodfelter v. Bost
| Decision Date | 31 January 1874 |
| Citation | 70 N.C. 733 |
| Court | North Carolina Supreme Court |
| Parties | G. W. CLODFELTER v. JOSEPH BOST, Guardian. |
An action against a guardian for an account and settlement with his ward, should commence in the Probate Court; the mistake in the jurisdiction, (as an irregularity,) is cured either by waiver, as when defendant answers the complaint, or otherwise pleads to the merits, or by the operation of remedial statutes.
The Act of 1866-'67, chap. 59, sec. 2, allowing jury trials in certain cases is repealed.
When the defendant in 1854 took the guardianship of the plaintiff, who as heir of a soldier killed in the Mexican War, was entitled to a pension from the U. S. Government, which facts, within the knowledge of the guardian were sufficient to put him on enquiry as to such pension, and where the guardian had been remiss in other duties: Held, that he was responsible for such pension from 1854, until his ward became of age.
CIVIL ACTION, on a guardian bond, tried by his Honor, Judge Mitchell, at the Fall Term, 1873, of CATAWBA Superior Court.
The facts, upon which the decision in this Court rests, are fully stated in the opinion of Justice BYNUM.
Both plaintiff and defendant, being dissatisfied with the rulings of his Honor on the trial below, appealed.
Schenck and Smith & Strong, for the plaintiff .
Armfield and McCorkle & Bailey, for defendant .
The defendant, in January, 1854, became the guardian of the plaintiff, in place of one Rufus Clodfelter, who had been removed.
The father the plaintiff, died the 15th of September, 1847, from the effect of wounds received in battle, as a soldier in the war with Mexico, and the plaintiff, who was his only child, was entitled to a pension from the government of the United States, by virtue of the laws thereof, from his birth, to-wit: the first of June, 1845, until his age of sixteen, to-wit: June the first, 1861, when the said pension, by law ceased, and is not now recoverable. Upon complaint and answer, it was referred to the Clerk of the Court, to take the account, which he did, and reported to Fall Term, 1873, when exceptions thereto were were filed and argued by the defendant, but were overruled by the Court, and the report was confirmed. At the same term of the Court, the defendant claimed a jury trial upon the question of “diligence or negligence,” under the provisions of Ch. 59, sec. 2, Acts of 1865-7, which his Honor refused. The defendant then moved to dismiss the action for for the want of jurisdiction, which motion was allowed, and the plaintiff appealed from the other rulings which were adverse to him.
1. First as to the jurisdiction. The action should properly have begun in the Court of Probate, as the Court of original jurisdiction, but as the Superior Court had appellate jurisdiction of the same subject matter, the mistake of jurisdiction could be cured, as an irregularity, either by waiver, or by the operation of remedial statutes.
(1.) The defendant admitted the jurisdiction, by putting in an answer to the merits and therin
submitted to an account, filing exceptions to the report and allowing the same to be confirmed by the Court, before he moved to dismiss. It was too late. Sumner v. Miller, 64 N. C. 688.
(2.) Ch. 108, Acts of 1870-'1 and ch. 175, Acts of 1872-'3, were enacted to remedy the mistakes of jurisdiction and apply to such cases as this, as we have held more than once, at the present term of the Court. It was, therefore, error to dismiss the action for want of jurisdiction.
2. Had the defendant the right of a trial by jury, upon the question of ““diligence,” under the provisions of ch. 59, sec. 2, Acts of 1866-'7?
It is not necessary to decide a question made in the argument, whether that Act is not unconstitutional as an infringement upon the essential powers of the Judiciary, by making that a question of fact, which is only a question of law. We have in Armfield v. Brown, decided at this term, declared the said Act to have been repealed by subsequent legislation, and for the reasons stated in that case.
In our case, then, all the facts are found by the referee, and upon review, again found by the Judge, and the only question before us, is, do the facts found, in law, make the defendant liable for the pension?
“Hard cases are the quick sands of the law.” Bost, has made no profit out of the...
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Kuykendall v. Proctor, 685
...estate must act in good faith and with that care and judgment that a man of ordinary prudence exercises in his own affairs.' In Clodfelter v. Bost, 70 N.C. 733, the plaintiff, after becoming of age, sued his former guardian for the negligent failure to collect from the United States Governm......
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