#### RILEY ORR v. WAYNE BEACHBOARD.

(Filed 20 August, 1930.)

Insane Persons I a — Court is without authority to appoint guardian ad litem for person after he has been cured of insanity.

Where a party to an action has beóome insane and placed in a State institution therefor, and is thereafter released therefrom as sane, C. S., 6214, the court is without authority, after his regaining his sanity, to appoint a guardian ad Utem for him, C. S., 451, and notice to the guardian so appointed as to the taking of depositions of witnesses does not comply with the required statutory notice, C. S., 1810, and upon objection, the depositions so taken should be excluded.

*277Civil actiok, before Moore, J., at January Term, 1930, of Gbaham.

Tbe plaintiff instituted an action against tbe defendant alleging tbat tbe defendant bad collected from bina tbe sum of $400 to be paid to an auditor wbo was employed by tbe .defendant to audit tbe plaintiff’s accounts as sheriff and tax collector of Grabara County. Tbe defendant filed answer denying tbat be was indebted to tbe plaintiff, and alleged tbat tbe money paid bim by plaintiff was in settlement of professional services. After tbe defendant’s answer bad been filed be was adjudged insane and committed to tbe State Hospital at Raleigb. Tbe wife of defendant, Mary Beachboard, was duly appointed guardian of tbe defendant. An order yras thereafter duly issued requiring Mary Beach-board, guardian, to appear and defend tbe action, but this order was returned with a notation to tbe effect tbat Mary Beachboard was not to be found in Buncombe County or North Carolina, and was said to be in New York City. At a subsequent term on 4 June, 1929, the plaintiff filed an affidavit in tbe cause to tbe effect tbat Mary Beachboard, guardian of tbe defendant, was in New York City and beyond tbe jurisdiction of tbe Superior Court of Buncombe County, and tbat there was no way to serve notice on said guardian to appear in court. Whereupon, tbe affiant asked tbe court to appoint a guardian ad litem for tbe defendant. Thereupon Judge McElroy appointed T. M. Jenkins guardian ad litem for said defendant. At tbe trial tbe plaintiff offered in evidence tbe deposition of Fred A. Hull. Counsel representing tbe defendant objected to tbe deposition upon tbe ground tbat no notice bad been given defendant of tbe time and place for taking said deposition. Tbe evidence tended to show tbat tbe only notice given of taking said deposition was tbat given to T. M. Jenkins, guardian ad litem, wbo was present at tbe taking of tbe deposition. It further appears tbat there “was read into tbe record” a certificate of Dr. Albert Anderson, superintendent of Dix Hill State Hospital, Raleigb, N. C., dated 11 May, 1929, as follows: “This is to certify tbat Wayne Beachboard, an insane person, was sent to this hospital from Buncombe County, and tbat, in my opinion, be having become of sane mind, has been discharged as cured, in accordance with tbe provisions of section 6214, Consolidated Statutes of 1919.” Hence at tbe time tbe guardian ad litem was appointed for tbe defendant and at tbe time tbe deposition was taken tbe defendant bad been discharged from tbe hospital for tbe insane in accordance with tbe provisions of O. S., 6214.

There was judgment for tbe plaintiff and tbe defendant appealed.

B. L. Phillips for plaintiff.

Calvin B. Bdney, 8. J. Pegram and James B. Sector for defendant.

*278BhogdeN, J.

Can a guardian ad litem be appointed for a sane person, and is the act of such guardian ad litem in conducting litigation for such person binding?

The plaintiff instituted an action against the defendant alleging a misappropriation of money. The defendant filed an answer denying the allegations of the complaint. Thereafter the defendant was adjudged insane and confined in the State Hospital at Baleigh. His wife was duly appointed his general guardian. On 11 May, 1929, the defendant was discharged from the hospital in accordance with C. S., 6214, upon the ground that he was then of sane mind. Subsequently, in June, 1929, without notice to the defendant or his general guardian, and without having the general guardian removed as provided in 0. S., 2158, the court proceeded to appoint a guardian ad litem to defend the action for and in behalf of defendant. The guardian ad litem so appointed undertook to accept service of notice of the taking of deposition and appeared at the taking of said deposition, said deposition being taken at the instance of plaintiff. C. S., 451, empowers the court to appoint a guardian ad litem for infants, idiots, lunatics, or persons non compos mentis. Therefore,' at the time the guardian ad litem was appointed the defendant did not fall within the classification provided in the statute, and there was no authority or warrant of law for such appointment. C. S., 1810, requires notice to take deposition to be “served upon the adverse party or his attorney” by the party at whose instance such deposition is taken. The case at bar discloses that no such notice was given and the deposition objected to in apt time should have been excluded from consideration by the jury.

A motion to dismiss the appeal was lodged by the plaintiff, but it appears that certain stipulations of counsel attached to the record preclude the granting of such motion.

New trial.