Rutledge v. Rutledge

• Decision Date: 24 February 1971
• Docket Number: No. 7119SC149,7119SC149
• Citation: 179 S.E.2d 163,10 N.C.App. 427
• Court: North Carolina Court of Appeals
• Parties: Sylvia Sue RETLEDGE v. Delma James RUTLEDGE.

Page 163

179 S.E.2d 163

10 N.C.App. 427

Sylvia Sue RETLEDGE v. Delma James RUTLEDGE.

No. 7119SC149.

Court of Appeals of North Carolina.

Feb. 24, 1971.

Miller, Beck & O'Briant, by Adam W. Beck, Asheboro, for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellant.

PARKER, Judge.

No question is raised by this appeal as to the sufficiency of the evidence to support the court's findings of fact or the sufficiency of these in turn to support the order awarding plaintiff relief pendente lite. The only exceptions brought forward are, first, that the court erred in denying the motion for the appointment of a guardian to represent the defendant, and, second, that the court erred in proceeding to hear the matter and enter the order appealed from.

There was clearly no error in the court's refusal of the motion to appoint a guardian for the defendant. The record does not indicate that the defendant had any knowledge or notice that such a motion was being made. In the absence of notice to the defendant and opportunity granted him to be heard, appointment of a guardian for him would have been error. Hagins v. Redevelopment Comm. of Greesboro, 275 N.C. 90, 165 S.E.2d 490.

A more serious question is presented by the second exception and assignment of error. Infants and persons Non compos mentis are peculiarly entitled to the protection of the court. A principal means for extending this protection is by appointment of a guardian or, where appropriate, a guardian Ad litem. Where a party in a civil action has been judicially determined or is conceded to be mentally incompetent, the law is clear; he must be represented by a guardian or guardian Ad litem. In Bell v. Smith, 262 N.C. 540, 138 S.E.2d 34, our Supreme Court said:

'If a defendant in a civil action is Non compos mentis, he must defend by general or testamentary guardian if he has one within the State, otherwise by guardian Ad litem to be appointed by the court. Hood v. Holding, 205 N.C. 451, 171 S.E. 633. The court may not quash the service on an incompetent, but should see to it that he is properly represented before any action is taken which is detrimental to his interests. Either party, or the court upon its own motion, may initiate proceedings for the appointment of a guardian Ad litem before any hearing on the merits.

Substantially the same requirement is now contained in our Rules of Civil Procedure. G.S. § 1A--1, Rule 17(b).

The difficulty arises when the party has not previously been judicially declared to be an incompetent and a dispute arises as to his competency. Justice Sharp, speaking for the Court in Hagins v. Redevelopment Comm. of Greensboro, Supra, pointed out that the statute and court rule then in effect, former G.S. § 1--64 and Superior Court Rule 16, failed to specify a procedure for adjudicating a dispute over a party's competency to conduct his litigation. The new Rules of Civil Procedure, while spelling out the appointment procedure in G.S. § 1A--1, Rule 17(c), also fail to specify the method or procedure by which a disputed question of competency is to be determined. Of necessity, therefore, we must look elsewhere for guidance.

In a criminal case, '(o)rdinarily, it is for the court, in its discretion, to determine whether the circumstances brought to its attention are sufficient to call for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense.' State v. Propst, 274 N.C. 62, 161 S.E.2d 560. By virtue of statutes now codified as G.S. § 122--83 and G.S. § 122--84, such determination may be made by the court with or without the aid of a jury. State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458. However, '(w)hether defendant is able to plead to the indictment and conduct a rational defense should be determined prior to the trial of defendant for the crime charged in the indictment.' State v. Propst, Supra. In the criminal case the defendant whose competency is being determined is, of course, present is person before the judge who is called upon to make the determination.

In the course of the trial of both civil and criminal cases the trial judge may at times be called upon to determine on Voir dire whether a young child or an adult of low mentality, who is presented as a witness, has sufficient capacity and understanding to testify. Ordinarily this determination also rests in the sound discretion of the trial judge to be exercised by him in the light of his examination and observation of the particular witness. State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. Carter, 265 N.C. 626, 144 S.E.2d 826; McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321. In such cases the person whose competency as a witness is being determined is, of course, present in person before the judge who is called upon to make the determination.

We are of the opinion, and so hold, that if in the course of the trial of a civil action or proceeding, circumstances are brought to the attention to the trial judge which raise a substantial question as to whether a party litigant, who is not already represented by a guardian, is Non compos mentis, it is the duty of the trial judge to see that proper determination of this question is made before proceeding further with the trial in any way which might prejudice the right of such party. Whether the circumstances which are brought to the attention of the trial judge are sufficient to raise a substantial question as to the party's competency is a matter to be initially determined in the sould discretion of the trial judge. In making this initial determination, normally a Voir dire...