Worthy v. Worthy

• Decision Date: 30 June 1867
• Parties: LEONARD WORTHY, plaintiff in error. v. MARY A. WORTHY, by her prochein ami, NATHAN RESPASS, defendant in error.
• Court: Georgia Supreme Court

36 Ga. 46

LEONARD WORTHY, plaintiff in error. v. MARY A. WORTHY, by her prochein ami, NATHAN RESPASS, defendant in error.

Supreme Court of the State of Georgia

June Term, 1867.

(Milledgeville, June Term, 1867.)

Note.——Warner, C.J., did not president in this case.

Divorce. Demurrer. Decided by Judge Cole. From Crawford Superior Court. Chambers, May, 1866.

This case was argued December Term, 1866, and held up. Mary A. Worthy, (suing by her next friend and father, Nathan Respass,) in her libel, alleged, that she married defendant in 1858, lived with him till about the first of November, *1865, when she became insane, and was by him sent to the Lunatic Asylum, where she then was, and that he was guilty of adultery with persons therein named, with the other usual allegations in such cases, and a schedule of property, verified by said next friend.

The defendant, by his solicitors, filed a general demurrer. By consent it was argued in Chambers.

The Court overruled the demurrer, and ordered defendant to answer. This action of the Court is assigned as error.

Robert P. Trippe, P. W. Alexander and James W. Green, solicitors for plaintiff in error.

James M. Smith, for defendant in error.

HARRIS, J.

This is a suit instituted by the father of a female lunatic asher next friend, against the defendant, her husband, for a total divorce, on the ground of adultery, and the question is, whether a guardian or next friend can, of his own will, institute such a suit, and prosecute or abandon it at his pleasure?

Mrs. Worthy was at the institution of this suit a lunatic, and confined in the asylum near Milledgeville.

It does not appear that, after her affliction, at any time, she had a lucid interval; for if she had, and that being shown, and that during that interval she had directed suit for divorce to be brought, it should have been in her own name, without appearance by next friend. This suit is an indirect admission that she had no lucid interval, and for the purposes of this decision we will assume that the fact is so.

If a guardian or next friend has the power insisted upon, we desire to learn whence if is derived. It certainly is not given by express provision of law, nor can it legitimately be deduced from the personal custody of the ward, which imposes certain duties on the guardian which he must perform. We confess that, notwithstanding the very able argument of the counsel for the father of Mrs. Worthy, we are unable to regard the right to sue for a divorce in any...