Morse v. Caldwell
| Decision Date | 22 May 1937 |
| Docket Number | 26106. |
| Citation | 191 S.E. 479,55 Ga.App. 804 |
| Parties | MORSE v. CALDWELL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An adult World War veteran, an epileptic, for whom a guardian has been appointed under the provisions of Code, §§ 49-802, 49-803, solely to receive, invest, and disburse for the ward funds or benefits allowed him by the federal government, is where not shown to be non compos mentis, prima facie competent personally to exercise his full legal rights, in and out of court, with respect to all matters not affecting such benefits.
(a)
(b) Where an unsuccessful attempt has been made in a court of ordinary to have such person adjudicated insane, it will be presumed, after judgment, until the contrary appears, that he is not non compos mentis.
(c) Accordingly, where, in a suit by a next friend on behalf of such person to remove the guardian appointed under the provisions of Code, §§ 49-802, 49-803, for the special purpose of receiving, investing, and disbursing the benefits allowed the ward by the federal government, the petition is dismissed by the court of ordinary, and an appeal is filed to the superior court, including a pauper's affidavit, the epileptic veteran is prima facie entitled to make oath that he is advised and believes that he has good cause for appeal and that, owing to his poverty, he is unable to pay the costs or give the security required by law.
(d) Where such appeal and affidavit are also signed by the next friend, with averments that the ward and the next friend are advised and believe that he and the next friend each has good cause for appeal, but that, owing to his poverty, he is unable to pay the costs or give the security required by law but there is no allegation that the next friend, because of her poverty, is unable to pay the costs or give the security required by law, and where the next friend subsequently amends and avers on oath that, if the material words were omitted from the affidavit by mistake, she avers that she is because of her poverty, unable to pay the costs or give the security required by law, and thereafter her counsel make oath to an amendment that by mistake such material words were by them omitted in preparing the affidavit and appeal, the paupers' affidavit as amended is not objectionable on the ground that such averments were not made under the oath of the next friend. The affidavit of counsel, not professing to swear to the conscience of the next friend as to her reason for not being able to meet the usual requirements of the law as to paying costs, etc., but going only to their own minds and consciences, in stating that they omitted the material words by mistake, was properly admitted by the court. The pauper's affidavit as amended was a sufficient compliance with the provisions of Code, § 6-203, and properly supported the appeal.
(e) Where a proceeding has been instituted before the ordinary it is the act of the ordinary, and not his title, which determines whether the judgment is that of a court of ordinary or of the ordinary. In a proceeding for the appointment or removal of a guardian the ordinary is acting as a court under the jurisdiction conferred by Code, § 24-1901.
(f) In a proceeding brought by a next friend or a guardian on behalf of another, the suit is essentially that of the person for whom the action is brought.
(g) The court did not err in overruling the motion to dismiss the appeal, in overruling the objections to the amendments, and in overruling the motion to dismiss the appeal as amended.
2. A petition filed by a next friend on behalf of another for the removal of the guardian of the latter, alleging that the guardian has remained for four years a nonresident of this state, having moved to the state of California; that, in her absence, she is regularly and continuously represented in her guardianship by an attorney in fact and attorney at law, and that such a condition produces a harmful effect and influence on the physical and temperamental welfare of the ward, that his interests would be better subserved by the removal of the present guardian who, under the circumstances named, is unfit to exercise the trust, and alleging that the petition for removal is brought with a view of applying for the appointment of another guardian after the removal of the present one, sets forth a cause of action which is good against a general demurrer.
(a) The law lays down no limitations on the scope of the inquiry into the question of the fitness or suitability of a guardian, whether the guardian be of the person or of property of the ward. Where it is alleged that a guardianship is being exercised in a manner which produces a harmful effect on the physical and temperamental welfare of the ward, the proof of facts in support of such allegations would authorize a jury to find that the guardian is "unfit" within the contemplation of the law.
(b) The court did not err in overruling the general demurrer. The special demurrers, not being argued or insisted on in the brief of counsel for the plaintiff in error, are treated as abandoned.
3. The evidence introduced on the hearing in the superior court was sufficient to authorize the jury to find in favor of the removal of the guardian.
4. No error is shown in the portions of the charge complained of by the plaintiff in error. Neither did the court err in refusing to give the requested charges.
5. The court did not err in overruling the motion for new trial.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Proceeding by Bartholomew Burchett, by Mrs. Maggie Caldwell, as next friend, against Mrs. Dorothy Levy Morse, guardian. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
Bartholomew Burchett, by Mrs. Maggie Caldwell as next friend, filed a petition in the court of ordinary to remove as the guardian of his property Mrs. Dorothy Levy Morse, the petition as amended alleging that he is a war incompetent, under the laws of the United States and the state of Georgia, being at the time at Lenwood Hospital in the city of Augusta, and therefore proceeds in the petition by his aforesaid next friend; that the said Mrs. Dorothy Levy Morse is the guardian of his property, having been duly appointed and qualified as such under letters of guardianship heretofore issued to her by the court of ordinary of Richmond county, Ga.; that since qualifying as guardian, and about four years ago, she moved out of, and became a nonresident of, the state of Georgia, and is, and has been since such time, a resident of, and located in, the state of California at San Francisco; that, though absent, she is regularly and continuously represented in her guardianship by her attorney in fact and attorney at law, Abraham Levy, Esq., a member of the bar and resident of Richmond county, Ga.; that, because of such nonresidence of the said guardian and the inability of the ward to get in prompt and more frequent personal touch with her, and to discuss and talk with her about his matters, interests, moneys, and estate, such a condition produces a hurtful and harmful effect and influence on the physical and temperamental welfare of the ward, and that his interest would be better subserved by the removal of the present guardian; that such removal is sought with a view to applying for, naming, and the appointment of some other guardian, fit and suitable, who is a resident of the state of Georgia and Richmond county; that under the circumstances and conditions set out the present guardian is unfit for the trust as guardian of the property of the ward. Mrs. Dorothy Levy Morse, as guardian, filed an answer, denying the charges of unfitness, and setting up that her attorney acted for her as fully as she might personally do as guardian only of the property of the ward, with the exception of signing, indorsing, and depositing checks on the ward's account, and averring that the sole cause of her being cited to show cause why she should not be removed was that her attorney had refused to sign him out of the hospital against the advice of such Veteran's Facility, and that the ward had informed the said attorney that he would select a guardian who would sign him out.
She also filed a demurrer to the petition. The court of ordinary, without passing on the demurrer, dismissed the petition on a hearing.
An appeal was filed to the superior court, including a pauper's affidavit, the paper being signed and sworn to by the ward and his next friend. It recited that the ward was advised and believed that he had good cause for appeal, but that, owing to his poverty, he was unable to pay the costs or give security as required by law, and also recited that Mrs. Maggie Caldwell, as next friend for such ward, and the ward, were advised and believed that each had good cause to appeal, but that, owing to his poverty, he was unable to pay the costs or give security as required by law.
In the superior court the appellee, subject to the demurrer already filed, made a motion in writing to dismiss the appeal on the following grounds: ...
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