Sims v. Sims

• Decision Date: 07 December 1897
• Citation: 121 N.C. 297,28 S.E. 407
• Court: North Carolina Supreme Court
• Parties: SIMS v. SIMS.

28 S.E. 407

121 N.C. 297

SIMS

v.SIMS.

Supreme Court of North Carolina.

Dec. 7, 1897.

Marriage—Validity—Lunatics—Guardians — Actions—Removal.

1. A marriage with a declared lunatic is ab initio void.

2. Ex parte proceedings to remove a guardian of an insane person, and an order entered thereon, where the guardian was not made a party or served with notice, are void, under Code. § 217, subd. 3, which provides for service on the guardian.

3. An action for divorce may properly be brought by the guardian of an insane person in the name of his ward.

4. A marriage void on account of the lunacy of a party cannot be cured by cohabitation after restoration.

Appeal from superior court, Wilkes county; Starbuck, Judge.

Action by Nancy E. Sims, by her guardian, W. R. Sprinkle, against W. M. Sims, for divorce. Decree for plaintiff, and defendant appeals. Affirmed.

The action is entitled "Nancy E. Sims, by Her Guardian, W. R. Sprinkle, vs. W. M. Sims." Issues: (1) Is the action brought In the name of the proper party, to wit, W. R. Sprinkle, guardian? (2) Did Nancy E. Sims have sufficient mental capacity to enter into a marriage contract with W. M. Sims on the 14th day of November, 1893? On October 2, 1893, a proceeding was begun to inquire into the mental condition of Nancy E. Sims, who at that time was Nancy E. Sprinkle. Accordingly a jury was summoned, who found and reported her to be Incompetent, for want of understanding, to manage her business affairs, and subsequently the application of W. R. Sprinkle to be appointed her guardian was granted, and he was accordingly appointed her guardian by the clerk of the superior court in March, 1895. Subsequently, on August 23, 1895, under an order of the clerk of the superior court, in a proceeding for that purpose, a jury found that Nancy Sims was sane, and competent to transact the ordinary businessaffairs of life, and upon the report coming in it"was adjudged: "Judgment. That the report of the said jury be, and the same is hereby, in all things confirmed and approved by the court; and the court doth declare her, the said Nancy E. Sims, to be of sane mind and competent to attend to the ordinary business affairs of life, and doth further order that William Sprinkle be removed from his said office as guardian of her person and property, and turn over the same to her or her duly-authorized agent, and that he at once report to this court the condition of the estate and the manner in which he has carried out this judgment; that notice issue to said former guardian informing him of his removal, " etc. (Signed by the clerk of superior court.) It is admitted that Sprinkle was not a party to and had no notice of said petition of W. M. Sims to remove him as guardian. It was admitted that Sprinkle had filed no report as guardian up to the time of this trial. After hearing the evidence his honor decided that Sprinkle, as guardian, had the right to bring this action, and answered the first issue, "Yes." Defendant excepted. The plaintiff introduced evidence in support of his contention on the second issue, the defendant offered no evidence, and the jury answered said issue, "No." Defendant moved for a new trial for error in holding that the action was properly brought by Sprinkle as guardian. Motion overruled. Defendant excepted. Judgment for plaintiff. Defendant appealed. Judgment of the judge below: "This cause coming on, " etc., "and it being agreed that the court should pass upon the fact whether Sprinkle had a right to maintain the action as guardian or whether he had been legally removed, the court decided that he could maintain the action now on issue. Did Nancy E. Sprinkle (or Sims) have sufficient mental capacity to enter into contract of marriage with William Sims on the 14th of November, 1898? having been submitted to the jury, and the jury having found said issue, 'No, ' and in favor of the plaintiff, now, on motion, " etc., "It is adjudged and decreed that the bonds of matrimony heretofore existing between Nancy E. Sims and W. M. Sims be dissolved, and that said Nancy be forever freed from the same, and plaintiff recover costs." (Signed by Star-buck, Judge.)

W. W. Barber, for appellant.

Glenn & Manly, for appellee.

CLARK, J. On November 11, 1893, Nancy E. Sims, under appropriate proceedings begun some time previous, was duly found by the jury to be mentally imbecile. The jury in the present case find that the alleged marriage with the defendant took place on the 14th of November, 1893. Such marriage is absolutely void ab...