#### ALTON B. BELL v. MARY LOU SMITH.

(Filed 30 September, 1964)

Insane Persons § 10; Process § 6—

Where service of process in a civil action is made upon defendant who is non compos mentis, the court correctly refuses to quash the summons and vacate the service, but the court should see to it that defendant is properly represented before any action is taken which is detrimental to his interests.

Appeal by defendant from Riddle, S. J., March 2, 1964 Non-Jury Civil Term, Gaston Superior Court.

The plaintiff instituted this civil action against the defendant for actual and punitive damages based on her alleged “false, slanderous, and malicious charges" which are detailed in the complaint. The Sheriff of Wake County served the summons and copy of the complaint on the defendant who at the time was confined in the State Hospital for the Insane, to which institution she had been committed by order of the Superior Court of Gaston County upon a jury finding that she did not have sufficient mental capacity to plead .to a bill of indictment charging her with the crime of murder. Defendant’s counsel undertook to enter a special appearance and moved to quash the summons and vacate the service because of her incompetency. From the order overruling the motion, the defendant appealed.

William N. Puett, Berlin H. Carpenter, Jr., for plaintiff appellee.

Hollowell ■& Stott, and Frank P. Cooke, by Grady B. Stott for defendant appellant.

Per Curiam.

If a defendant in a civil action is non compos mentis, he must defend by general or testamentary guardian if he has one within the State, otherwise by guardian ad litem to be appointed by the court. Hood v. Holding, 205 N.C. 451, 171 S.E. 633. The court may not quash the service on an incompetent, but should see to it that he is properly represented before any action is taken which is detrimental to his interests. Either party, or the court upon its own motion, may initiate proceedings for the appointment of a guardian ad litem before any hearing on the merits.

Affirmed.