Moore v. Gidney
| Decision Date | 30 June 1876 |
| Citation | 75 N.C. 34 |
| Court | North Carolina Supreme Court |
| Parties | A. E. MOORE v. J. W. GIDNEY, Adm'r. |
When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian, before a guardian ad litem can be appointed, a summons must be served upon such infants, and a copy of the complaint also be served or filed according to law. After the guardian ad litem is thus appointed in a special proceeding, a copy of the complaint, with the summons, must be served on such guardian.
An administrator filed his petition to sell the lands of his intestate for assets, and had the widow appointed guardian ad litem, before the infants were in court by the service of any summons upon them; the widow answered for such infants only, and not in her own right--the attorney for the petitioning administrator drafting and filing her answer; a decree was obtained, and under it the lands were sold. Afterwards the widow became apprized of facts which constituted her equitable right to one of the tracts of land sold under said decree, and she thereupon moved in the cause still pending, to set aside the decree and sale: Held, that the decree thus obtained was irregular, and not binding either upon the infants or widow, and that the sale under such decree should be set aside.
MOTION in the cause, heard before SCHENCK, J., at Chambers in CLEAVELAND County, May 5th, 1876, upon an appeal from the ruling of the Probate Court.
The plaintiff, as guardian ad litem of the infant heirs of John L. Moore, deceased, and in her own behalf, moved the Court to set aside an order of sale, and final decree theretofore made in the cause. The motion was based upon affidavits to the following effect:
That on the 10th September, 1874, the plaintiff filed a petition against the heirs of his intestate, J. L. Moore, setting forth, among other things, that deceased was indebted to the amount of $10,000 or $20,000, and that his personal estate was worth from $10,000 to $15,000. That at his death, deceased was seized of several tracts of land, and prayed that the same might be sold by the order of the Court to make assets, &c. On the 9th day of April, the day preceding the filing of said petition, the Court made a decree appointing this petitioner guardian ad litem of said minor heirs, and she, on the 24th day of September, 1874, not knowing her rights, and in her great distress and trouble, and acting under the advice of the plaintiff and his counsel, was induced to sign an answer in her capacity as guardian ad litem, admitting all the allegations of said petition and consenting to the sale as prayed for. This answer was written by the plaintiff's counsel, at his own suggestion, and without fee.
That she never would have consented to the sale of one of the tracts of land, described in the petition as the “Thos. Wilson tract,” had she known the effect of such consent, for the reason that she claims that the said tract was bought with her own money, advanced to her deceased husband with the positive agreement that the deed when made should be made to her and her children, and she is advised by counsel that she is the proper owner thereof, and demands that an issue be made to try the title thereto.
That on the 5th day of October, 1874, this Court made a decree ordering a sale of the lands mentioned in the pleadings for the purposes therein set forth, to be made on the 9th day of November, 1874. That the plaintiff afterwards reported to this Court that he had sold the lands on the 10th day of November, and not on the 9th, as he was ordered to do.
That on the 16th day of April, 1875, a decree was made by this Court, confirming the sale of the 10th of November, 1874.
That after having been induced to sign an answer as guardian ad litem, she was ignorant of all other proceedings in the matter for a considerable time, and was not aware that she could assert her claim to the “Wilson tract.”
Petitioner therefore moved the Court to set aside the decree made on the 16th day of April, 1875, confirming the sale of November 10th, 1874, and that the petitioner may be made a party to the cause, as to her rights concerning the “““Wilson land,” &c.
The plaintiff in the cause filed an answer to this petition, among other things alleging:
That the decree, which the petitioner seeks to set aside, was rendered more than one year before this petition was filed and before any notice thereof was issued or served upon the plaintiff.
That the petitioner became the purchaser of lands sold under said decree, and is estopped from denying the reguularity of the decree or sale thereunder.”
Upon the hearing the Probate Court found the following facts:
That there was no undue influence exercised by the plaintiff or his counsel, upon the guardian ad litem, in procuring the filing of her answer.
That the administrator reports that he sold the land on the 10th day of November, 1874, but that the sale was actually made on the 9th day of November as ordered by the Court.
The Court found as conclusions of law:
That the irregularity in the appointment of guardian ad litem was cured by her voluntary appearance and answer.
That Annie E. Moore is estopped by her own voluntary act from denying the title of J. L. Moore to the “Wilson land.” That she is not entitled to a jury to try the issues. That she is not entitled to the relief demanded in the complaint.
From this ruling the petitioner appealed to the Superior Court, and upon the hearing his Honor found the following facts: A summons issued on the 9th day of September, 1874, against the minor defendants and against A. E. Moore, guardian ad litem, to appear before the clerk of Cleaveland County, within twenty days. This summons was only served on Ann E. Moore as guardian ad litem, and not on the heirs. It was served on the 10th of September, 1874.
Ann E. Moore was appointed guardian ad litem on the 9th of September, 1874.
On the 24th day of September, 1874, Ann E. Moore filed an answer as set forth in the pleadings:
That the facts stated in the affidavit of W. A. Hoke are correct. The following is the affidavit:
“He was attorney for J. W. Gidney in the petition for sale of lands of J. L. Moore. He drew up the answer of the defendant Ann E. Moore as guardian ad litem in said petition, and delivered the same to her with the statement, that if she had no defense to make to said sale the answer would be sufficient, but that if she desired to resist the sale of said lands she had better employ counsel. That the petitioner Ann E. Moore took the answer and had the same under advisement for some time and the hearing of the cause was delayed to give the present petitioner opportunity to answer and defend the petition for sale, if she so desired.
That this affiant never advised the plaintiff in the premises; that petitioner came to affiant in reference to...
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Rackley v. Roberts
...154, 51 S. E. 908, had reference to the special facts of the Several cases cited to support it. We will now refer to those cases. Moore v. Gidney, 75 N. C. 34, was a motion in the cause, and not an independent civil action. Gulley v. Macy, 81 N. C. 350, was a civil action in which fraud was......
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Graham v. Floyd
...in the special proceeding and after answer is filed by the guardian ad litem, the court may proceed to sign judgment. C.S. § 451; Moore v. Gidney, 75 N.C. 34; v. Young, 91 N.C. 359; Welch v. Welch, 194 N.C. 633, 140 S.E. 436. The guardian ad litem shall file answer. C.S. § 453. It is the du......
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Rackley v. Roberts
... ... 154, 51 S.E. 968, had reference to ... the special facts of the several cases cited to support it ... We will now refer to those cases. Moore v. Gidney, ... 75 N.C. 34, was a motion in the cause, and not an independent ... civil action. Gulley v. Macy, 81 N.C. 356, was a ... civil action ... ...
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Hughes v. Pritchard
...not find supported by any decision of this court, nor is it in accord with the adjudications of other courts. On the contrary, in Moore v. Gidney, 75 N.C. 34, J., in speaking for the court, said: "When infant defendants in a civil action or special proceeding have no general or testamentary......