Marriner v. Mizzelle

• Decision Date: 19 September 1934
• Docket Number: 18.
• Citation: 175 S.E. 711,207 N.C. 34
• Parties: MARRINER v. MIZZELLE et al.
• Court: North Carolina Supreme Court

175 S.E. 711

207 N.C. 34

MARRINER v. MIZZELLE et al.

No. 18.

Supreme Court of North Carolina

September 19, 1934

Appeal from Superior Court, Chowan County; Devin, Judge.

Proceeding by N. B. Marriner, guardian of H. W. Mizzelle, lunatic against H. W. Mizzelle, lunatic, W. D. Pruden, his guardian ad litem, and another.From the judgment, the defendants appeal.

No error.

Charge should be considered contextually as a whole, and not disconnectedly and disjointedly, as regards errors in charge.

Charge of trial judge should be considered contextually and as a whole.

See also, 205 N.C. 204, 170 S.E. 650.

This proceeding was begun by petition filed by the plaintiff with the clerk of the superior court of Chowan county, and was transferred by the clerk to the civil issue docket for the trial of issues raised by the pleadings.

On the facts alleged in his petition, the plaintiff prayed for an order allowing him credit on his accounts as guardian for certain sums of money which he had deposited in certain banks, and which had been lost by reason of the subsequent insolvency thereof, and fixing the amount of his bond with relation to such credit.The plaintiff alleged that said losses were not due to any negligence on his part.The defendants, who had been made parties to this proceeding on motion of the plaintiff, denied this allegation, and alleged that said losses were due to the negligence and lack of good faith of the plaintiff in failing to invest said funds as authorized by law.

The controversy was submitted to the jury upon the following issues, both of which were answered in the affirmative, to wit:

"1.Is the plaintiff entitled to a credit in his guardian account for monies deposited in the Farmers Bank of Belhaven and lost by reason of the failure of said bank?

2.Is the plaintiff entitled to a credit in his guardian account for monies deposited in the Citizen's Bank of Edenton and lost by reason of the failure of said bank?"

Whereupon judgment was entered adjudicating that the plaintiff had on deposit temporarily in the Farmers' Bank of Belhaven awaiting suitable investment, the sum of $6,785.05 at the time of its failure, and had on deposit, under like conditions, in the Citizens' Bank of Edenton, at the time of the failure, the sum of $1,321.14, and that such moneys were a part of the funds turned over to him upon his qualification as guardian and were held pending proper investment; and adjudging that the plaintiff, N. B. Marriner, guardian of H. W. Mizzelle, lunatic, was not guilty of any breach of duty or condition of his bond in keeping and having said moneys on deposit in said banks; and remanding the cause to the clerk to the end that the accounts of the guardian might be revised in accord with the verdict, by eliminating the amounts that were on deposit in the two closed banks, less such dividends as were or may be paid thereon.

To the judgment of the court, the defendants in apt time objected and excepted, and appealed to this court.

W. D. Pruden, of Edenton, and J. A. Pritchett, of Windsor, for appellants.

Ward & Grimes, of Washington, N. C., for appellee.

SCHENCK Justice.

In the case of Bane v. Nicholson et al.,203 N.C. 104, 164 S.E. 750, this court quoted with approval 12 R. C. L. p 1133, part of section 30, as follows: "The deposit of funds in an incorporated bank of good reputation temporarily, while they are awaiting...