Hagins v. Redevelopment Commission of Greensboro, 683

• Decision Date: 31 January 1969
• Docket Number: No. 683,683
• Parties: Bernice T. HAGINS v. REDEVELOPMENT COMMISSION OF GREENSBORO, North Carolina, a body corporate.
• Court: North Carolina Supreme Court

Page 490

165 S.E.2d 490

275 N.C. 90

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

body corporate.

No. 683.

Supreme Court of North Carolina.

Jan. 31, 1969.

Comer & Harrelson, Greensboro, for plaintiff appellant.

Cannon, Wolfe, Coggin & Taylor, Greensboro, for defendant appellee.

SHARP, Justice.

Plaintiff Hagins asserts (1) that she was deprived of due process when the court, after nonsuiting her four cases and advising her that she would have one year in which to reinstitute the actions, vacated the judgments of nonsuit and, without notice to her, appointed Franks as her next friend; and (2) that Franks' appointment was void and his purported settlement of her cases, although approved by the court, is not binding upon her.

Defendant's position is (1) that plaintiff was charged with notice of the orders vacating the judgments of nonsuit and appointing Franks as her next friend because they were entered during the term at which the cases were calendared for trial; (2) that the judge was not required to give plaintiff notice that he, Ex mero motu, was contemplating the appointment of a next friend to conduct her litigation; (3) that G.S. § 1-64 empowered the judge to make the appointment upon any evidence or facts coming to his attention which convinced him she was not competent to manage her litigation; and (4) that the law authorized the next friend, with the court's approval, to settle plaintiff's litigation.

This crucial question is presented: Was plaintiff entitled to actual notice and an opportunity to be heard upon the issue of her mental competency before the judge was empowered to appoint a next friend to take charge of her litigation?

If the answer to the foregoing question is YES, the fact that the order appointing the next friend was made at term is irrelevant. However, at the outset, we deem it desirable to dispose of defendant's first contention. In doing so we note the two well-established rules of practice and procedure upon which defendant relies: (1) During a term of court all judgments and orders are In fieri, and, except for those entered by consent, may be opened, modified, or vacated by the court upon its own motion. Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791; Hoke v. Atlantic Greyhound Corporation, 227 N.C. 374, 42 S.E.2d 407; 5 N.C. Index 2d, Judgment § 6 (1968). (2) Unless actual notice of a particular motion is required by the constitution or statute, parties to an action are fixed with notice of all motions or orders made during the term of court at which the cause is regularly calendared for trial. Hardware Dealers Mutual Fire Insurance Co. v. Sheek, 272 N.C. 484, 158 S.E.2d 635; Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784; Collins v. North Carolina Highway Commission, etc., 237 N.C. 277, 74 S.E.2d 709; Harris v. Board of Education, 217 N.C. 281, 7 S.E.2d 538. This rule with reference to constructive notice, however, bends to embrace common sense and fundamental fairness. For instance, in Long v. Cole, 74 N.C. 267, an order made at term was subsequently set aside, 'the order being made at midnight, when the plaintiff was absent, and did not know, and had no reason to believe that the Court was in session, and his counsel not being able to attend. * * *' Id. at 269. See also Sircey v. Hans Rees, Sons, 155 N.C. 296, 71 S.E. 310.

Under Rule (1) noted above, during the term at which he had entered the judgments of nonsuit, Judge Crissman had the authority, upon his own motion and without giving notice, to vacate the nonsuits and to restore the cases to the docket. See Collins v. North Carolina Highway Commission, etc., supra 237 N.C. at 282, 74 S.E.2d at 714. Hagins, however was entitled to immediate official notice that the cases had been reinstated. In the absence of such notice she was not charged with knowledge of any further proceedings in the cases. Between the time the actions were nonsuited and reinstated they were no longer pending, Burton v. City of Reidsville, 243 N.C. 405, 90 S.E.2d 700, and plaintiff was not required to maintain a constant vigil until the court adjourned for the term lest the judgments of nonsuit be vacated without notice to her. As Ervin, J., pointed out in Collins v. North Carolina Highway Commission, etc., supra, if the law 'is to be a practical instrument for the administration of justice,' it cannot 'require parties to abandon their ordinary callings, and dance 'continuous or perpetual attendance' on a court' simply because they have a case pending, Id. 237 N.C. at 281, 74 S.E.2d at 713-a fortiori, if the case has been terminated by a judgment of nonsuit and is no longer pending.

Preliminary to a consideration of the question presented, we correlate the facts: Hagins is an adult. She denies that she is incompetent. She has never been committed to a mental hospital. She has never been adjudged insane in any civil or criminal action nor has she been adjudged incompetent from want of understanding to manage her affairs in a proceeding under G.S. § 35-2. She is not an inebriate. All the evidence tends to show that if she is mentally disordered or lacks mental capacity, her want of understanding is confined to One subject--her land and Commission's power to condemn it. On this subject, her former attorneys declare that she is 'totally irrational' and 'is so obsessed with the repossession of her condemned land' that she has 'neither the willingness nor the capacity to understand' and manage her claims for damages; as to all other matters, she is 'mentally aware and alert.'

We next consider the applicable statutes. G.S. § 1-64 provides in pertinent part: 'In actions and special proceedings when any of the parties plaintiff are infants, idiots, lunatics, or persons non compos mentis * * * they must appear by their general or testamentary guardian, if they have any within the State; but * * * if there is no such guardian, then said persons may appear by their next friend. * * *' G.S. § 1-65 authorizes the court to appoint a guardian ad litem for any defendant who is an infant, idiot, lunatic, or person non compos mentis and without a general guardian.

The only stated procedure for the appointment of a next friend appears in Superior Court Rule 16, 'Next Friend--How Appointed: In all cases where it is proposed that infants shall sue by their next friend, the court shall appoint such next friend, upon the written application of a reputable, disinterested person closely connected with such infant; but if such person will not apply, then, upon the like application of some reputable citizen; and the court shall make such appointment only after due inquiry as to the fitness of the person to be appointed.' N.C.Gen.Stat. Vol. 4A, p. 204 (1955).

Chapter 35, Article 2, of the N.C. General Statutes provides for guardianship and management of the estates of incompetents. In behalf of a person deemed 'a mental defective, inebriate, or mentally disordered, or incompetent from want of understanding to manage his own affairs,' G.S. § 35-2 authorizes any person to file with the Clerk of the Superior Court of the county in which the 'supposed mentally disordered person' resides a duly verified petition setting forth the facts. Thereafter, 'upon notice to the supposed mental defective,' a jury of twelve inquires into the mental state of the alleged incompetent. If the jury finds him 'to be a mental defective,' the Clerk proceeds to appoint a guardian for him.

G.S. § 35-2.1 authorizes the Clerk to appoint a guardian or trustee for any person whom a jury, in either a criminal or a civil case, has found to be insane or incompetent to conduct business. G.S. § 35-3 empowers the Clerk to appoint a guardian for any 'idiot, lunatic, or insane person,' confined in a State-supervised hospital for the insane upon the certificate of its superintendent declaring such person 'to be of insane mind and memory or mentally retarded.' However, before any person can be committed to a mental hospital, over his or his family's objection, G.S. § 122-58 declares that he must be given a hearing as provided in G.S. § 122-63.

From the foregoing statutes, it is apparent that the jurisdictional facts which would authorize the Clerk of the Superior Court to appoint a general guardian or trustee for plaintiff do not exist. What facts will authorize the judge to appoint a next friend?

In Orr v. Beachboard, 199 N.C. 276, 154 S.E. 311, after the defendant had filed answer, he was adjudged insane and committed to the State Hospital. Therein he recovered his sanity and was officially discharged from the hospital as cured. Approximately one month thereafter the court appointed a guardian ad litem for him under C.S. 451 (now G.S. § 1-65). In holding the appointment of the guardian ad litem void and the acts not binding upon the defendant, this Court said: 'C.S., 451, empowers the court to appoint a guardian ad litem for infants, idiots, lunatics, or persons non compos mentis. * * * (A)t the time the guardian ad litem was appointed the defendant did not fall within the classification provided in the statute, and there was no authority or warrant of law for such appointment.' Id at 278, 154 S.E. at 312. Although technically a next friend represents a plaintiff and a guardian ad litem represents a defendant, we note that there is no substantial difference between the two. 44 C.J.S. Insane Persons § 140 (1945). The class of persons for whom next friends and guardians ad litem may be appointed are the same. G.S. §§ 1-64 and 1-65.

The effect of Orr v. Beachboard is that an adult plaintiff who is not an idiot or lunatic must be non compos mentis before the court has jurisdiction to appoint a next friend for him. How then must the incompetency of a party-litigant be established in order to meet constitutional requirements of due process?

Neither G.S. § 1-64 nor Superior Court Rule 16 contains any provision for notice to the party for whom it is suggested that a...