Thompson v. Moore, 17031

Decision Date14 July 1955
Docket NumberNo. 17031,17031
Citation227 S.C. 417,88 S.E.2d 354
CourtSouth Carolina Supreme Court
PartiesFrank R. THOMPSON, G. A. L., Appellant, v. Mrs. Addis L. MOORE, Respondent.

Charles Welborn, Anderson, for appellant.

John C. Pracht, Jr., Anderson, for respondent.

J. WOODROW LEWIS, Acting Associate Justice.

This is an appeal from an order of Judge Pruitt of the Tenth Circuit vacating a previous order by him appointing appellant as guardian ad litem for appellant's father, William N. Thompson. Upon the verified petition of appellant an order was passed on August 21, 1954, appointing the appellant as guardian ad litem for his father for the purpose of bringing an action against the respondent for the recovery of money allegedly due by the respondent to the said William N. Thompson who, it was alleged, was incompetent by reason of his mental condition to bring the action. Upon the institution of the action by the appellant, the respondent moved before Judge Pruitt for an order vacating the previous order of appointment. After hearing the motion the circuit judge passed an order vacating the previous appointment of appellant as guardian ad litem and dismissed the action on the ground that 'the proof of incompetency was insufficient to support the appointment.'

The appellant first contends that the motion to vacate the order appointing him guardian ad litem constitutes a collateral attack upon the order of appointment previously made. The procedure adopted by the respondent is not a collateral attack upon the order of appointment but is a direct one in the same proceeding which resulted in the appointment. The procedure here adopted is approved in the case of Barr v. One 1935 V-8 Ford Truck, 188 S.C. 181, 198 S.E. 389, 391.

It is next contended that the issue of the mental competency of the subject herein presented a question of fact to be determined by the jury upon a trial of the case. The complaint contains no allegation that the subject was mentally incompetent at the time of the transaction alleged. Assuming, however, that the complaint did so allege, appellant confuses the issue of incompetency as it affects the right of the appellant to institute the present action and the right of recovery on the cause of action alleged in the complaint. The question before the circuit judge was not whether the subject was incompetent at the time of the transaction set forth in the complaint, but whether he was mentally incompetent at the time of the appointment of appellant as guardian ad litem.

The appearance of a mentally incompetent person as a party to litigation in this State is governed by statute. Section 10-236, 1952 Code of Laws, as amended by Act No. 836 of the 1952 Acts of the General Assembly, 47 St. at Large, p. 2066, provides that 'a mentally incompetent person, whether hospitalized or not, shall appear by guardian ad litem in an action by or against him. * * * The application shall be made to, and the appointment made by, the court in which the action is prosecuted, or by the judge, or the clerk, or the master thereof, or by the probate judge of the county in which the incompetent person resides, or of the county in which the action is prosecuted.'

The statutes do not provide for, nor contemplate, a jury trial on the question of mental competency upon application for the appointment of a guardian ad litem for an allegedly mental incompetent. In cases, as here, where there has been no previous adjudication of mental incompetency it is required that the fact of mental incompetency be made to appear to the Court or officer making such appointment by proof reasonably sufficient to establish the fact, either by affidavit or otherwise. The question of the mental condition of the subject is one of fact to be determined by the Court or officer to whom the application is made, here the circuit judge. See Barr v. One 1935 V-8 Ford Truck, supra.

As stated in the Barr case, supra: "To justify such an appointment, which may have the effect to deprive a person of the control of litigation in which his interests may be largely involved, the fact of incompetency should be specifically alleged, and the court should be satisfied from...

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14 cases
  • Broom v. Southeastern Highway Contracting Co., Inc., 0850
    • United States
    • Court of Appeals of South Carolina
    • October 15, 1986
    ...being, of course, that sufficient proof of Broom's incompetency supported the guardian ad litem's appointment. Cf. Thompson v. Moore, 227 S.C. 417, 88 S.E.2d 354 (1955) (wherein the Supreme Court affirmed an order that vacated, on motion of the defendant, a prior order of appointment of a g......
  • Rogers v. Rogers
    • United States
    • Court of Appeals of South Carolina
    • October 21, 2020
    ...mental deficiency so great as to render one unable to comprehend or transact the ordinary affairs of life.’ " Thompson v. Moore , 227 S.C. 417, 422, 88 S.E.2d 354, 356 (1955) (quoting Edge v. Dunean Mills , 202 S.C. 189, 195, 24 S.E.2d 268, 271 (1943) ). In Zaragoza v. Zaragoza , 309 S.C. 1......
  • Rogers v. Nation By and Through Clayton, 0389
    • United States
    • Court of Appeals of South Carolina
    • December 19, 1984
    ...was insufficient to support the alleged incompetency is binding on this court unless unsupported by the evidence. Thompson v. Moore, 227 S.C. 417, 88 S.E.2d 354 (1955); Martin v. Martin, 258 S.C. 560, 190 S.E.2d 30 (1972). Nation's counterclaim to set aside the judgment is based on South Ca......
  • Wilson v. Ball, 3067.
    • United States
    • Court of Appeals of South Carolina
    • November 1, 1999
    ...ad litem's] powers are coterminous with the beginning and end of the litigation in which he is appointed."). 9. Thompson v. Moore, 227 S.C. 417, 88 S.E.2d 354 (1955). 10. Dominick v. Rhodes, 202 S.C. 139, 24 S.E.2d 168 (1943); Mordecai v. Canty, 86 S.C. 470, 68 S.E. 1049 (1910); cf. Morris ......
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