Hagins v. Redevelopment Commission of Greensboro, 67SC11

• Decision Date: 28 February 1968
• Docket Number: No. 67SC11,67SC11
• Citation: 159 S.E.2d 584,1 N.C.App. 40
• Parties: Bernice T. HAGINS v. REDEVELOPMENT COMMISSION OF GREENSBORO, North Carolina, a body corporate.
• Court: North Carolina Court of Appeals

Page 584

159 S.E.2d 584

1 N.C.App. 40

Bernice T. HAGINS v. REDEVELOPMENT COMMISSION OF GREENSBORO, North Carolina, a body corporate.

No. 67SC11.

Court of Appeals of North Carolina.

Feb. 28, 1968.

Comer & Harrelson, Greensboro, for plaintiff appellant.

Cannon, Wolfe & Coggin, by J. Archie Cannon, Greensboro, for defendant appellee.

MALLARD, Chief Judge.

The plaintiff appellant assigns as error the action of the court in appointing a next friend on January 26, 1967, in the absence of the plaintiff, without notice to her and without her knowledge or consent.

The case was calendared for trial January 23, 1967, and the plaintiff did not appear; however, her attorneys, Mr. Samuel S. Mitchell and Mr. Earl Whitted, Jr., did appear and informed the Court that the plaintiff had told them she was sick. The next day, January 24, 1967, the case was called again, and the plaintiff was present with her attorneys. At that time the plaintiff personally presented to the Court a paper writing in which she requested that her attorneys be discharged, after which the following occurred:

THE COURT: (To Mrs. Hagins) 'In other words, you're firing them. Is that what you're doing? That is what you're asking, isn't it?

MRS. HAGINS: Yes, sir.

THE COURT: You have a right to put on your evidence and try the cases. That is the reason I suggested that you confer with them for fifteen minutes and see if you couldn't arrive at something that would be sensible and helpful to you. We'll take a fifteen minute recess.

RECESS

THE COURT: (To Mrs. Hagins) You want to proceed with your cases?

MRS. HAGINS: I don't know anything about the cases.

THE COURT: I know you have been made a proposition of settlement. Let the record show that the plaintiff in these cases--Bernice T. Hagins v. Redevelopment Commission of Greensboro, N.C.;

State of North Carolina, upon the Relation of Bernice T. Hagins, and Bernice T. Hagins v. E. R. Phipps, E. E. Ballinger, Deputy Sheriffs of Guilford County;

Bernice T. Hagins v. South Atlantic Bonded Warehouse Corporation, et al;

Bernice T. Hagins v. Aero Mayflower Transit Co., Inc., et al

That in open court this date she dismissed her attorneys and has stated in open court that she is not in position to proceed with the cases that are calendared for trial on this date, and the court orders judgment of nonsuit in each of the four cases.'

The record does not corroborate Mrs. Hagins' statement in her affidavit filed in all four cases, 'that the Judge * * * told the plaintiff that she would have one year in which to start over' after entering the nonsuit in all four of the cases.

The record does not disclose that either of the plaintiff's attorneys requested the court to permit them to withdraw at this time. There is nothing in the record that indicates that the court gave them permission to withdraw at this time.

On January 25, 1967, Earl Whitted, Jr., one of the plaintiff's attorneys, filed an affidavit in this and the other cases which states in substance that the plaintiff had refused to cooperate with her attorneys and that 'Mrs. Bernice T. Hagins has a fixation about this case beyond which she will not go; that she will neither listen to the advice of counsel nor to reason or understanding; that she is both illogical and incapable of handling her affairs in this matter.'

On January 25, 1967, Samuel S. Mitchell, one of plaintiff's attorneys, filed an affidavit in which he refers to her as 'his former client.' Also, in this affidavit Mr. Mitchell asserts: 'Affiant has found Mrs. Hagins to be mentally aware and alert in all matters, excepting in regards to her relationship to her land, which was recently condemned by the Redevelopment Commission of Greensboro in the Cumberland Project, and in regards to claims for damages which grew out of these condemnation proceedings; that in regards to these matters affiant has found her to be totally irrational and without a rational base from which to counsel with her attorneys in litigation or in negotiation concerning these matters; that affiant has found her to be totally impervious to logic, reason or understanding in regards to these matters and totally without willingness or apparent capability to evaluate or accept evaluation in regards to the condemnation of her land and in regards to claims arising therefrom; that affiant does not believe that his former client has the willingness or capacity to understand and appreciate the circumstances attendant upon a dismissal of her legal actions without trial, although affiant and his associate have many times explained these circumstances to her.

'That affiant believes that his former client is so obsessed with the repossession of her condemned land that her ability to manage her claims for damages for the taking is nonexistent; that affiant knows that she is in need of the court in the matter referred to above; that affiant believes that her legal posture in reference to the actions above mentioned will so deteriorate that she is now in danger of losing value amounting to thousands of dollars; that affiant believes that because of Mrs. Hagins' obsessions, as indicated above, she is incapable of managing her affairs insofar as they relate to the actions listed herein and to matters arising from the recent condemnation proceedings.'

On January 26, 1967, the court, in this case and the other three cases, made the following entry:

'Let the record show that the Court in its discretion is setting aside the judgments of nonsuit that were announced in Court when the cases were called on Monday and is continuing all of these cases for the term And they will be open for further proceeding.' (Emphasis added)

The Court had the authority on its own motion to vacate the judgments of nonsuit during that session of court, and none of the parties have taken exception thereto. Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791; Southeastern Fire Insurance Company v. Walton, 256 N.C. 345, 123 S.E.2d 780. On January 26, 1967, Judge Crissman entered the following order:

'THIS CAUSE coming on to be heard before the Honorable Walter E. Crissman, Resident Judge of the Eighteenth Judicial District, and being heard at the January 16th Term of Superior Court, Civil Division, upon Affidavits filed by counsel for the plaintiff, upon observations made by the Court and upon statements of fact as contained in the record, the Court is of the opinion and finds as a fact, that the plaintiff in this action is completely incapable of protecting her own rights, is ignorant of court procedure, and that her actions have been detrimental to her own interests; that the course of action or conduct shown by the plaintiff, dating back to 1961, whereby she refused to obey any orders entered by any court of competent jurisdiction, having to be taken into custody by the Sheriff to permit Commissioners of Appraisal to enter upon her property for the sole purpose of appraising same, by writing letters to the Department of Justice in Washington, to the President of the United States and to Mrs. Johnson to the effect that she was being mistreated, by her refusal of advice from her own selected counsel, and by her discharge of said selected counsel in open court when trial was just beginning, by her statement that 'all lawyers are crooked,' by her apparent inability to comprehend what is transpiring, and by her complete indifference and defiance as manifest throughout the entire records on file in the Clerk's Office, the Court ex mero motu finds it imperative to appoint a next friend for this plaintiff to look after and manage her affairs in the present litigation.

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Joseph Franks, Jr., is hereby appointed next friend for Bernice T. Hagins in the cases herein set out, for the sole purpose of inquiring into her cause of action, to consider all elements of damage and offers to settle, to pursue all remedies offered by law to the end that plaintiff's property and personal rights are protected in full, and that her best interests be protected, as provided by law.'

The record shows that the plaintiff took exception to this order appointing the next friend. We assume that the record is correct and that it was taken at the time of the entry of the order. This is plaintiff's assignment of error no. 1.

In Moore v. Lewis, 250 N.C. 77, 108 S.E.2d 26, referring to the appointment of a guardian ad litem for a defendant who was non compos mentis, the Court stated, '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. Insane Persons § 143b, 307, 308.'

The exception is 'to the action of the court and the court's appointing a next friend without the plaintiff's consent, knowledge or notice.' There is no exception to any of the court's findings of fact. Hence, we must accept as established the facts set forth in the court's findings. Weddle v. Weddle, 246 N.C. 336, 98 S.E.2d 302; In Re Estate of Cogdill, 246 N.C. 602, 99 S.E.2d 785; In Re Hardin, 248 N.C. 66, 102 S.E.2d 420. Upon the facts found, we think the court had the inherent and equitable power to appoint a next friend in this case. G.S. § 1--64; Peppard v. Peppard, Fla., 198 So.2d 68; Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564. Indeed, under such circumstances, it was the duty of the court to make such appointment in order that plaintiff's rights could be properly safeguarded.

The judgments of nonsuit directed by Judge Crissman of January 24th were stricken on January 26th, which had the effect of placing the causes back on the calendar at that session of court. The order appointing the next friend was made during that session of court; notice was not necessary. Parties to actions are fixed with notice of all motions or orders made during the session of court in ...