Smith v. Smith

• Decision Date: 31 March 1890
• Citation: 11 S.E. 188,106 N.C. 498
• Parties: SMITH v. SMITH.
• Court: North Carolina Supreme Court

11 S.E. 188

106 N.C. 498

SMITH v. SMITH.

Supreme Court of North Carolina

March 31, 1890

Appeal from superior court, Wake county; R. F. ARMFIELD, Judge.

Action by Larkin Smith, by his next friends, against Charles Smith. After the summons was issued, defendant took a power of attorney, already written, to plaintiff, and procured his signature there to. The power of attorney purported to appoint Messrs. Fuller & Stone and Batchelor & Devereux attorneys at law, of the city of Raleigh, attorneys of plaintiff, and to direct and empower them, in his name, to dismiss the action. Upon presentation of the power of attorney, and motion to dismiss, the next friends of plaintiff suggested to the court that at the time of its execution plaintiff was insanse, and incapable of appointing an attorney. The motion to dismiss was continued, and at the following term was renewed. Upon the motion being overruled defendant's counsel asked the court to hear evidence as to plaintiff's sanity, and decide as to his competency to execute the power of attorney. This the court refused to do saying he would submit an issue upon the matter to the jury and, as the evidence upon this issue would involve much of the evidence raised by the pleadings in the case, he would at the same time submit the issues raised by the pleadings. Various exceptions to the admission of evidence were taken at the trial, which it is unnecessary to mention. One of the counsel for plaintiff spoke to the jury of the fact that the defendant had not answered the complaint, and said that no doubt the reason that prevented him from doing so was the fact that the complaint was sworn to, and that the defendant could not safely answer many of the charges therein against him without committing perjury. Defendant's counsel asked the court to stop the comments, but the court declined to do so, and defendant excepted, saying that the complaint had not been put in evidence. The court replied, which was the fact that after the jury were impaneled the complaint had been read to them without objection on the part of the defendant. The jury found for plaintiff, and the court gave judgment accordingly. Defendant appeals.

It is error for the court, after defendant's objection, to allow plaintiff's counsel to comment to the jury on defendant's failure to answer the complaint, where the complaint, though read to the jury after it has been impaneled, has not been formally put in evidence, since defendant has no opportunity, until its introduction in evidence, to explain his failure to answer.

Batchelor & Devereux and E. C. Smith, for appellant.

J. H. Fleming, for appellee.

SHEPHERD J.

We do not concur with the defendant that the court had no power to submit the issues involving the mental capacity of Larkin Smith to execute the papers in controversy. There can be no question but that persons non composmentis may sue by their next friend when they have no general or testamentary guardian, (Code, § 180;) and "it is incident to the ordinary jurisdiction of a court having full chancery powers to inform its conscience by directing an issue upon the sanity of a party, not found a lunatic, to be framed for a jury, when the question arises collaterally in an equitable proceeding, as, for instance, when it becomes necessary to determine the question of the sanity of the grantor in a deed upon a bill brought to set outside his conveyance upon the ground of his insanity." Busw. Insan. 55.

It is insisted by the defendant that no action can be brought until there has first been an inquisition of launcy under chapter 37 of the Code, and for this position he relies upon the case of Dowell v. Jacks, 5 Jones, Eq. 417. In that case the plaintiff had been declared insane under an inquisition directed by the county court, (Revised Code, c. 57,) and the plaintiff sued in equity to have the said proceedings set aside because of errors and irregularities, and also because she was in fact of sound mind. The court dismissed the bill not because it had no jurisdiction to entertain suits brought by the next friend of a lunatic, who had not been legally declared to be such, but for the reason that the jurisdiction as to inquisitions of lunacy was exclusively in the county court. BATTLE, J., in delivering the opinion, said that the effect of the provisions of the Revised Code was "to confer upon the country courts original and exclusive jurisdiction to issue writs from time to time,...