In re Dry, 216 N.C. 427 (1939)

Nov. 1, 1939 · Supreme Court of North Carolina

216 N.C. 427

In the Matter of JOHN T. DRY, Ex Parte.

(Filed 1 November, 1939.)

1. Insane Persons § 4—

A proceeding to have declared sane and competent a person theretofore declared incompetent is a summary proceeding not requiring service of notice on the guardian nor service of summons on the incompetent under C. S., 483 (3), it being necessary only that the incompetent be given notice.

2. Same—

A guardian of an incompetent may not appeal from the finding of the jury or the order of the clerk entered thereon declaring such person sane and competent in proceedings under O. S., 2287, the guardian having no interest adverse to such declaration and there being no right of appeal given him by statute.

Appeal by T. B. Mauney, guardian, from Bobbitt, J., at February Term, 1939, of Cabarrus.

Appeal dismissed.

R. L. Brown, Jr., for appellant.

Hartsell & Hartsell for appellee.

Devin, J.

A petition to have John T. Dry, a resident of Cabarrus County, adjudged of sound mind and competent to manage his own affairs, was filed on his behalf by his brother, under the provisions of C. S., 2287. Pursuant to the procedure prescribed by that statute, a jury, which had been duly summoned and sworn, found John T. Dry competent, and returned report to that effect. The report was approved and filed by the clerk. Thereupon T. B. Mauney, who had previously been appointed guardian of John T. Dry by the clerk of the Superior Court of Stanly County, appeared specially and moved to dismiss tbe proceeding on tbe ground tbat no notice of tbe petition bad been served on bim. Tbe clerk denied tbe motion, and upon appeal to tbe judge of tbe Superior Court, tbe ruling of tbe clerk was affirmed and tbe proceedings were beld to bave been properly conducted in accordance witb tbe statute, and tbe guardian appealed to tbis Court.

Tbe statute under wbicb these proceedings for the adjudication of the competency of John T. Dry were conducted does not require tbat the guardian be' served witb notice. Only the non-sane person is mentioned in the statute as one to whom notice must be given. Tbe proceeding is summary, and the provisions of C. S., 483 (3), prescribing the method of service of summons in a civil action against an insane person, do not apply. There was nothing in the order appealed from relative to the guardianship such as would affect any substantial right of the appellant. He bad no interest adverse to the proceedings for Jobn T. Dry’s restoration to competency. No provision is made in the statute for an appeal from the finding of the jury or from the order of the clerk pursuant to such finding. In re Sylivant, 212 N. C., 343, 193 S. E., 422. Tbe case of Sims v. Sims, 121 N. C., 297, 28 S. E., 407, is not in point, since tbat case was decided before the enactment of the statute prescribing the procedure for restoration to competency of a non-sane person.

Tbe denial of tbe motion of tbe guardian to dismiss tbe proceeding did not present an appealable matter. Tbe judgment of tbe court below is affirmed and tbe

Appeal dismissed.