Moore v. Askew

• Decision Date: 31 October 1881
• Citation: 85 N.C. 199
• Court: North Carolina Supreme Court
• Parties: MINNIE MOORE by her next friend J. S. Carr v. W. F. ASKEW.

85 N.C. 199

MINNIE MOORE by her next friend J. S. Carr

v.W. F. ASKEW.

Supreme Court of North Carolina.

October Term, 1881.

SPECIAL PROCEEDING heard an appeal at Spring Term, 1881, of WAKE Superior Court, before Schenck, J.

This is a proceeding commenced before the probate judge of Wake county, in which the plaintiff by her next friend, asks that the defendant, her guardian, may be required to disclose the manner in which he has invested her estate and the nature of the securities taken therefor.

The proceeding began with a motion on the part of plaintiff based on a proper affidavit, to compel the defendant to give additional securities upon his guardian bond. Notice of this motion was served on the defendant and made returnable on the 6th of March, 1879, on which day the matter was continued by the consent of the counsel of both parties to the 14th day of March, the plaintiff at the same time asking that the defendant might be required not only to give the additional security, but to make a statement on oath as to the manner and nature of the investments made of her estate. Notice of this last motion was issued returnable on the 14th, and service thereof accepted by defendant's counsel. The defendant afterwards gave the additional security, and in return to the other motion filed an account in which he charged himself with a balance reported in a former return and the interest subsequently accrued thereon, and took credit for the amounts since then expended, without disclosing the nature of his investments. The plaintiff excepted to the account returned as being an insufficient answer to the rule upon defendant, but the probate judge held it to be sufficient and discharged the rule, and thereupon the plaintiff appealed to the superior court.

Upon the hearing in the superior court the defendant's counsel moved to dismiss the plaintiff's appeal upon the ground that it had been improvidently granted and without the authority of law. He also moved the court to dismiss the case, and not to proceed further therein on the ground that the matter was not embraced in the action, the same having been brought merely to compel the defendant to give additional security, and that it was not properly before the court as a part of said action.

The court overruled both of the defendant's motions, whereupon he appealed to this court.

Messrs. Battle & Mordecai, for plaintiff .

Messrs. G. V. Strong and A. M. Lewis & Son, for defendant .

RUFFIN, J.

The exceptions taken here by defendant's counsel being the same taken in the court below, are,

1. That the refusal of the probate judge to require the defendant to disclose the nature of the investments made of her estate did not affect any ““substantial right” of the plaintiff, and could not therefore be the subject of an appeal.

2. That this motion of the plaintiff having been improperly interpolated into her other motion asking for additional security from her guardian, did not constitute any part of the proceeding, and was not rightfully before the court.

If satisfied that the defendant's first exception was well grounded, our first duty would be to inquire into its effect upon his own appeal, since if it be true that the refusal of the probate court to allow the plaintiff's motion affected her rights so immaterially and unsubstantially as not to afford her sufficient ground for an appeal, it might be difficult to understand how an order, though a contrary one, of the superior court touching exactly the same subject matter, could confer such right on...