Ury v. Brown
| Decision Date | 26 November 1901 |
| Citation | 40 S.E. 4,129 N.C. 270 |
| Parties | URY v. BROWN. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Cabarrus county; Allen, Judge.
Proceeding by Lillie Ury, by next friend, against R. A. Brown, to remove the latter as her guardian, begun before the clerk of the superior court, who refused such removal, and complainant appealed to the superior court, and from its judgment removing defendant he appeals. Affirmed.
W. G. Means, for appellant.
Self & Whitener and Montgomery & Crowell, for appellee.
This was a special proceeding, the object of which was the removal of the defendant from the guardianship of the complainant. It appears to us from that part of the record of the proceedings before the clerk that there might have been some doubt before the enactment of chapter 276, Acts 1887, as to whether the superior court in term had jurisdiction when the case was heard there. But since then it seems that whenever any civil action or special proceeding begun before the clerk be for any ground whatever sent to the superior court before the judge, the judge shall have jurisdiction, and try and determine all matters in controversy at the request of either party, if he shall think it expedient. Roseman v. Roseman, 127 N.C. 494, 37 S.E. 518. Many of the matters alleged as grounds for removal of the guardian were trivial, and there is no trace of dishonesty on his part in connection with the matters connected with his trust. But upon the parts of the complaint and answer which concern the use of the guardian fund by the guardian (defendant) in his own business the judgment of removal ought to have been made, and it is therefore unnecessary to consider the other exceptions of the defendant. The defendant admitted that he qualified as guardian for the purpose of using the money in his own business, and had used it during the guardianship. That was a conversion of the funds of his ward to his own use, within the meaning of section 1583, subsec. 1, of the Code.
No error.
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