Stanley v. Stanley *

• Decision Date: 15 May 1905
• Citation: 51 S.E. 287,123 Ga. 122
• Parties: STANLEY. v. STANLEY et al.*
• Court: Georgia Supreme Court

123 Ga. 122

51 S.E. 287

STANLEY.

v.STANLEY et al.^*

Supreme Court of Georgia.

May 15, 1905.

Insane Person—Action by Next Friend-Dismissal.

When a suit is instituted by one as the next friend of a person duly adjudged insane, but the petition does not disclose that the latter has no guardian, or allege any reason why it was necessary for him to sue by a next friend rather than by a duly appointed guardian, objection to the maintenance of the action may be made by special demurrer calling on the person instituting the suit to show by what right it was so brought in behalf of the insane person named as plaintiff; and, if the special demurrer is not met by appropriate amendment, it is proper for the court to dismiss the action.

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by J. P. Stanley, suing by Nancy Rusk, against Hattie Stanley and others. Judgment for defendants, and plaintiff brings error. Affirmed.

An action was instituted in the name of James F. Stanley, suing by his next friend, Nancy Rusk, against his wife, Mrs. Hattie Stanley, individually and as the natural guardian of her minor child. It was alleged that James F. Stanley was, on or about April 20, 1898, detained under a commission of lunacy issuing from the court of ordinary of Cobb county; that he was tried thereunder, adjudged to be insane, and sent to the State Lunatic Asylum at Milledgeville, Ga., from which institution he was released on or about October 28, 1899, without any certificate that he had regained possession of his mind; that he had never in fact regained his normal state of mind, is still of unsound mind, and that the judgment of the court of ordinary finding him to be insane still remains of force. The petition also set forth the following allegations of fact: While Stanley was suffering from his mental infirmity, and after he had been adjudged insane, his wife instituted proceedings against him to recover alimony for herself and child. No guardian ad litem was appointed by the court to represent him, nor had he sufficient mental capacity to defend the suit, and on December 4, 1901, a verdict and judgment for $700 was rendered against him. An execution issuing from this judgment has been levied on certain land belonging to him, and the sheriff is proceeding to bring the land to sale. The plaintiff attacked this judg-ment as void, because fraudulently obtained by Mrs. Stanley under the circumstances stated, and prayed that the sale of the land thereunder be enjoined, and that the judgment be set aside. The court declined to grant a restraining order, and the land was subsequently sold, A. E. Benson becoming the purchaser. By amendment the plaintiff set up these facts, also alleging that before the sale Benson had been put upon notice of the suit filed to set the judgment aside, and praying that he be made a party defendant The plaintiff also amended the original petition by adding various allegations to the effect that Mrs. Stanley was not entitled to alimony, and that Stanley, had he been under no disability, could have urged certain meritorious defenses to her action, and defeated a recovery by her. To the petition as amended the defendants demurred both generally and specially, and the court passed an order sustaining the general and special demurrers and dismissing the action. To this judgment exception is taken.

O. E. & M. C. Horton, for plaint...