Douglas v. Buchanan
| Decision Date | 09 June 1937 |
| Docket Number | 744. |
| Parties | DOUGLAS v. BUCHANAN et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; R. Hunt Parker, Judge.
Action by R. D. Douglas, guardian of Lucy B. Spencer, against John A. Buchanan and others. From the judgment, both plaintiff and some of defendants appeal.
Error on plaintiff's appeal; affirmed on defendants' appeal.
This is an action instituted by plaintiff against defendants to set aside certain conveyances made by plaintiff and alleging fraud. These allegations were denied by defendants, except Dolian Harris, trustee, admits and denies certain allegations and as to other allegations says "is without sufficient information to form a belief as to the truth."
The following judgment was rendered in the court below:
"This cause coming on to be heard, and being heard before the undersigned judge regularly holding the courts for the spring term, 1937, in the Tenth judicial district, upon the appeal of the defendants John A. Buchanan, W. S. Lockhart and James Mason, Jr., from the appointment by the clerk of the superior court of Durham county of James R. Patton Jr., as commissioner, before whom the defendants, to be examined, were directed to appear and testify;
It having been made to appear to the court, the court finds as facts that after the complaint and answers in this cause were filed, the clerk of the superior court of Durham county, at the request of plaintiff, on January 21, 1937, appointed James R. Patton, Jr., Esq., commissioner before whom the plaintiff might examine said defendants, as adverse parties that on January 29, 1937, the plaintiff caused to be duly served upon each of said defendants a written notice that he would examine said defendants at 10:30 a. m., February 10 1937, before said James R. Patton, Jr., at the county courthouse in Durham, together with a subp na for each of said defendants issued by the clerk of the superior court of Durham county, requiring them to be present at said time and place for said purpose; that the plaintiff likewise on January 29, 1937, caused to be served on C. W. Hall, trustee, and the Massachusetts Mutual Life Insurance Company, the other defendants herein, a notice that their codefendants would be so examined as adverse parties at said time and place; that on February 5, 1937, the defendants John A. Buchanan, W. S. Lockhart, individually and as trustee, and James Mason, Jr., filed in the office of the clerk of the superior court of Durham county their notice of appeal from the appointment of said commissioner.
It having been made to appear, and the court finding as a fact that Dolian Harris, trustee, did not appeal from the order of the clerk appointing said commissioner to hold said examination of parties; and that the defendant W. S. Lockhart did in open court before the undersigned judge withdraw his objection to being examined, and consented to such examination in so far as the said W. S. Lockhart is concerned; and it further appearing to the court that no privilege is sought to examine C. W. Hall, trustee, or the Massachusetts Mutual Life Insurance Company.
And it further appearing to the court that Lucy B. Spencer, who appears in this action through her guardian R. D. Douglas, has been duly and legally declared to be incompetent by a court of competent jurisdiction, and the court has considered the complaint of the plaintiff and the various answers of the appealing defendants as affidavits, and the court upon the consideration of the pleadings of the parties is of the opinion that the plaintiff is entitled to examine the appealing defendants within the scope hereinafter limited, the court is of opinion and finds as a fact that by reason of the incompetency of Lucy B. Spencer the examination of the appealing defendants is necessary under the pleadings considered by the court as affidavits. The court is therefore of the opinion that the plaintiff has a right to examine said defendants as adverse parties; that said commission to James R. Patton, Jr., was properly issued by the clerk, and that the appeal of said defendants is premature.
It is now, therefore, ordered, adjudged, and decreed that the appeal of the defendants John A. Buchanan, W. S. Lockhart individually and as trustee, and James Mason, Jr., from the appointment by the clerk of the superior court of Durham county of James R. Patton, Jr., as commissioner, to take the evidence of the defendants, be and the same is hereby dismissed and it is further ordered, adjudged, and decreed by the court in its discretion upon the facts found by it upon the pleadings offered by the plaintiff and used as affidavits that the said defendants sought to be examined by the plaintiff, to wit, John A. Buchanan, James Mason, Jr., W. S. Lockhart, and Dolian Harris, shall appear before James R. Patton, Jr., in the city of Durham, on the 8th day of April, 1937, at 10 a. m., in James R. Patton's office in Durham, N. C., there to submit to examination by the plaintiff. It is, however, ordered, adjudged, and decreed that the examination of the defendants John A. Buchanan and James Mason, Jr., shall be limited to those matters and things relevant and material to the inducements and representations made by the said defendants to the plaintiff, her children and her agents, which allegedly induced the execution of the mortgages, notes, deeds of trust, and deeds referred to in the pleadings, and to those matters and things relevant and material to the amounts actually paid to plaintiff by reason of the execution of said mortgages, notes, deeds of trust and deeds, described in the pleadings, and as to a relevant and material examination of said defendants as to whether or not they were acting solely for themselves, or as agents, servants, and employees of...
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