Tucker v. Am. Sur. Co. Of N.Y.

CourtUnited States Court of Appeals (Georgia)
Citation50 S.E.2d 859
Decision Date03 December 1948
Docket NumberNo. 32245.,32245.
PartiesTUCKER. v. AMERICAN SURETY CO. OF NEW YORK.

Rehearing Denied Dec. 15, 1948.

Syllabus by the Court.

1. A person may be eligible to have a guardian and at the same time may not be eligible to become an inmate of the Milledegeville State Hospital or continue as such.

2. Generally a person who has a guardian cannot maintain a suit in his own name or by next friend. See Code, § 37-1003; Stanley by next friend v. Stanley et al, 123 Ga. 122, 51 S.E. 287.

Error from Superior Court, Baldwin County; George S. Carpenter, Judge.

Action by Adele Louise Tucker by next friend against the American Surety Company of New York to recover on a surety bond of the plaintiff's deceased guardian. To review a judgment dismissing the petition, the plaintiff brought error to the Supreme Court which, 49 S.E.2d 522, transferred the case to the Court of Appeals.

Judgment affirmed.

Plaintiff in error, Mrs. Adele Louise Tucker, hereinafter referred to as the plaintiff, brought suit in the Superior Court of Baldwin County, against the defendant in error, American Surety Co. of N. Y, hereinafter referred to as the defendant.

The original petition was in two counts. The first count was brought against this defendant as surety on the bond of W. W. Sharpe, Sr., deceased since 1939. The second count was against W. Orrin Lea, guardian since the death of W. W. Sharpe, Sr., and St. Paul Mercury Indemnity Co. as surety of the present guardian.

A demurrer was interposed by all the defendants on the ground of misjoinder of parties defendant, and counsel for the plaintiff acceded thereto by amending his petition by striking count two thereof. The cause proceeded from that point as to the defendant herein only. The substance of the petition as finally amended in respect thereto against this defendant alleged substantially that W. W. Sharpe, Sr. was appointed guardian of the plaintiff by the Court of Ordinary of Ware County in December, 1929; that the defendant herein executed the bond of said guardian as surety in the sum of $40,000; that at the time of Sharpe's appointment plaintiff owned real estate in Florida valued at approximately $S0, 000.00, jewelry in Georgia valued at $40,000.00, and $202.00 in money; that in the early part of the year 1930, while Sharpe was guardian, plaintiff was confined to the Milledgeville State Hospital through proceedings instituted in the Court of Ordinary in Ware County; that she remained an inmate of said institution until June 18, 1947, when she procured her release under sections 35-236 and 35-237 of the Code. That the verdict of the jury trying her case in the Court of Ordinary of Baldwin. County under the procedure provided for in the above enumerated Code sections, recited that the plaintiff "has been restored to her right mind and reason, is sane and has the capacity to manage her estate and affairs, " concluding that she was entitled to be discharged, etc. The judgment of the Ordinary of Baldwin County based thereon recites "that the verdict of the jury is made the judgment of the court" and that "it is ordered that Mrs. Tucker be discharged from the Milledgeville State Hospital and that her civil status is fully restored;" that while she was in said institution and before the death of her guardian, said W. W. Sharpe, Sr., he caused her to suffer the loss of her property in the various ways detailed in the petition; that her present guardian, W. Orrin Lea, was appointed upon the death of her first guardian; that said Lea failed for these nine years to have any accounting with the surety of her deceased guardian; and that by reason of his conduct in not attending to her affairs and due to the fact that thebond of her first guardian was only $40,000 as compared to the loss of her property suffered by plaintiff through his misfeasance of approximately $140,000 said Lea and his surety are liable to her and that the interest of said guardian and that of the plaintiff is now in sharp conflict; that due to her recovery and to their conflicting interests she is entitled to maintain this suit in her own name instead of that of her guardian; and that she has pending in the Court of Ordinary of Ware County a proceeding under Code § 49-609 and § 49-610 to end the guardianship. The action is against the surety of the first guardian for recovery of the full liability under the terms of the bond.

The defendant demurred on the ground that the action could not be maintained in the name of the petitioner, it appearing she had a guardian. Plaintiff then amended so as to proceed by next friend. The demurrer was renewed on the ground that plaintiff, having a guardian, could not sue by next friend.

On the hearing the demurrer was sustained, the petition dismissed and this judgment is assigned as error.

Randall Evans, Jr., of Thomson, for plaintiff in error.

Jones, Jones & Sparks, of Macon, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

1. Section 49-601 of the Code vests jurisdiction in the ordinaries of the several counties for the appointment of guardians for insane persons. Section 49-604 provides for the procedure where a person is liable to have a guardian appointed or is subject to be committed to the Milledgeville State Hospital. Hence it may not always follow that a person eligible to have a guardian be, at the same time eligible for admission to the Milledgeville State Hospital. A person might be violently insane, likely to do bodily injury and have such an estate as to be eligible for both admission into the hospital and for wardship; or a person might be violently insane, and accordingly eligible for admission to the hospital, but having no estate there would be no occasion for the appointment of a guardian. On the other hand a person might suffer from a form of mental incapacity that would authorize the appointment of a guardian but would not make the person eligible for admission to the State Hospital.

In the instant case the plaintiff made a demand on the Superintendent of the Milledgeville State Hospital for discharge and upon the refusal of the Superintendent to release her, proceeded to procure such release in the manner provided for in §§ 35-236 and 35-237 of the Code. This proceeding was had pursuant to said Code sections in Baldwin County, on the 18th day of June, 1947. On January 5th, 1948, plaintiff proceeded to end the guardianship in the Court of Ordinary of Ware County in accordance with §§ 49-609 and 49-610 of the Code, of 1933.

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3 cases
  • Trammel v. Bradberry
    • United States
    • Georgia Court of Appeals
    • May 31, 2002
    ...civil commitment would satisfy the need for a guardian to be appointed by the probate court. Tucker v. American Surety Co. &c., 78 Ga.App. 327, 329-330(1), 50 S.E.2d 859 (1948). A civil commitment does not act as a procedure to have a guardian appointed, because many psychotic people have n......
  • Hall v. Hill
    • United States
    • Georgia Court of Appeals
    • June 29, 2021
    ...the person of an adult ward the authority to file a lawsuit on behalf of the ward's property interests); Tucker v. American Sur. Co. , 78 Ga. App. 327, 331-332 (2), 50 S.E.2d 859 (1948) (a party could not maintain an action in her own name or by next friend when her previously appointed gua......
  • Tucker v. American Surety Co. of New York
    • United States
    • Georgia Court of Appeals
    • December 3, 1948

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