Orr v. Beachbd., 633.
| Decision Date | 20 August 1930 |
| Docket Number | No. 633.,633. |
| Parties | ORR. v. BEACHBOARD. |
| Court | North Carolina Supreme Court |
Defendant was judicially declared insane, and a general guardian appointed. Subsequently, defendant was discharged from the hospital in accordance with C. S. § 6214 upon the ground that he was then of sane mind. Thereafter, without notice to defendant or his general guardian, who allegedly could not be found, and without having the general guardian removed as provided in C. S. § 2158, the court appointed a guardian ad litem. Section 451 empowers the court to appoint a guardian ad litem for infants, idiots, lunatics, or persons non compos, mentis.
C. S. § 1810 requires notice to take deposition to be "served upon the adverse party, or his attorney, " by the party at whose instance such deposition is taken.
Appeal from Superior Court, Graham County; Walter E. Moore, Judge.
Action by Riley Orr against Wayne Beach-board, in which T. M. Jenkins was appointed guardian ad litem for defendant. From a judgment in favor of plaintiff, defendant appeals.
New trial.
The plaintiff instituted an action against the defendant alleging that the defendant had collected from him the sum of $400 to be paid to an auditor who was employed by the defendant to audit the plaintiff's accounts as sheriff and tax collector of Graham county. The defendant filed answer denying that he was indebted to the plaintiff, and alleged that the money paid him by plaintiff was in settlement of professional services. After the defendant's answer had been filed, he was adjudged insane and committed to the State Hospital at Raleigh. The wife of defendant, Mary Beachboard, was duly appointed guardian of the defendant. An order was thereafter duly issued requiring Mary Beachboard, guardian, to appear and defend the action; but this order was returned with a notation to the effect that Mary Beachboard was not to be found in Buncombe county or North Carolina, and was said to be in New York City. At a subsequent term on June 4, 1929, the plaintiff filed an affidavit in the cause to the effect that Mary Beachboard, guardian of defendant, was in New York City and beyond the jurisdiction of the superior court of Buncombe county, and that there was no way to serve notice on said guardian to appear in court. Whereupon, the affiant asked the court to appoint a guardian ad litem for the defendant. Thereupon Judge McElroy appointed T. M. Jenkins guardian ad litem for said defendant. At the trial the plaintiff offered in evidence the deposition of Fred A. Hull. Counsel representing the defendant objected to the deposition upon the ground that no notice had been given defendant of the time and place for taking said deposition. The evidence tended to show that-the only notice given of taking said deposition was that given to T. M. Jenkins, guardian ad litem, who was present at the taking of the deposition. It further appears that there "was read into the record" a certificate of Dr. Albert Anderson, superintendent of Dix Hill State Hospital, Raleigh, N. C., dated May 11, 1929, as follows: "This is to certify, that Wayne Beachboard, an insane person, was...
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