Cobb v. South Carolina Nat. Bank

• Decision Date: 11 July 1947
• Docket Number: 15969.
• Parties: COBB v. SOUTH CAROLINA NAT. BANK et al.
• Court: South Carolina Supreme Court

43 S.E.2d 465

210 S.C. 533

COBB v. SOUTH CAROLINA NAT. BANK et al.

No. 15969.

Supreme Court of South Carolina

July 11, 1947

The committee of person formerly adjudged insane could appeal from order of restoration of sanity resulting from probate court proceeding in which the committee was made and appeared as a party and resisted the adjudication. Act April 19, 1943 43 St. at Large, p. 197; Code 1942, §§ 228, 230; Const. art 5, §§ 15, 19.

Davis & Lanford, of Columbia, for appellant.

Nelson, Mullins & Grier, of Columbia, for respondent.

STUKES Justice.

Benjamin Gilmore Jones was adjudged mentally incompetent by the Probate Court of Richland County on August 7, 1934 and the South Carolina National Bank was appointed his Committee, in which capacity it has since served, and, under order of the court, is paying $40.00 per month to the ward from the estate. The incompetent was never committed to the State Hospital.

Upon petition of a relative a guardian ad litem was appointed by the court on December 7, 1943 for the purpose of a proceeding under Act No. 136 of the Acts of 1943, April 19, 43 Stat 197, whereby the incompetent might be adjudged sane. The Bank, as Committee, was made a respondent, appeared by counsel at the hearing and resisted an adjudication of sanity. The Probate Court took testimony and after consideration of it and the arguments concluded that the former incompetent had sufficiently regained his mental competency to understand, comprehend and transact the ordinary affairs of life, whereupon it was adjudged that he be relieved of the former judgment of insanity and the Committee was ordered to make a final accounting and apply for a discharge as such.

The Bank, as Committee, appealed to the Court of Common Pleas upon grounds duly served. Counsel for the petitioner respondent in that appeal, moved to dismiss the latter. This the Circuit Court refused to do after a hearing on January 22, 1945, and the case reaches this Court upon the petitioner's appeal which has been argued in such form as to present the single question of whether the Committee of a person formerly adjudged insane may appeal from an order of restoration of sanity resulting from a proceeding in the Probate Court, in which proceeding the Committee is made, and appears as, a party and resists the adjudication. The point appears to be without precedent in our reports.

Reference to the applicable statute, supra, discloses the following proviso in which 'Petitioner' means the person formerly adjudged insane: 'The Petitioner or any other interested person standing within the family relationship of the insane person may appeal from the Order of the Probate Court to Common Pleas of the County wherein the petition is brought and there a trial be had de novo with a jury in like manner as civil actions are tried. The provisions of this sub-section shall be cumulative to any other provision of law relative to the adjudication of the sanity of a person theretofore adjudged insane.' The appellant, through counsel for his guardian ad litem, contends that the quoted provision of the applicable statute is conclusive that the Committee cannot appeal for it is not within the classification of those who are authorized by the statute to appeal. On the other hand, it is the position of respondent that it was a party at interest in the proceeding before the probate court and may appeal from the adverse (as to it) judgment of the latter.

Appellant cites the decision of Ensign v. Faxon, 224 Mass. 145, 112 N.E. 948, which holds in accord with his contention. However, it is contrary to the apparent weight of authority as is seen from the annotation in 122 A.L.R. 541. The cases from other jurisdictions have to be considered in the light of their respective statutes. Appeal is not an inherent or common law right and our constitutional and statutory provisions are, of course, of controlling importance. It is our conclusion under them that the Committee has the right of appeal in this case because it was a party to, and the loser of, the proceeding before the probate court, for we do not think it was the intendment of the legislature by passage of the Act of 1943 to deny the right of appeal to a party litigant which would otherwise be so entitled, particularly in view of the last above quoted proviso. The constitutional and statutory provisions generally authorize this right of appeal from decisions of the probate court to the court of common pleas. They will be briefly...