{ "id": 8573433, "name": "ALTON B. BELL v. MARY LOU SMITH", "name_abbreviation": "Bell v. Smith", "decision_date": "1965-03-03", "docket_number": "", "first_page": "814", "last_page": "816", "citations": [ { "type": "official", "cite": "263 N.C. 814" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "138 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "262 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569433 ], "opinion_index": -1, "case_paths": [ "/nc/262/0540-01" ] }, { "cite": "110 S.E. 2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624332 ], "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0201-01" ] }, { "cite": "51 S.E. 968", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652216 ], "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc/139/0145-01" ] }, { "cite": "108 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619731 ], "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0077-01" ] }, { "cite": "171 S.E. 633", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629486 ], "opinion_index": 0, "case_paths": [ "/nc/205/0451-01" ] } ], "analysis": { "cardinality": 338, "char_count": 5564, "ocr_confidence": 0.601, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3236374012538955 }, "sha256": "b5dc6524a980e4a1260adf0df041cc625d150030a89318097bf467184d24dcf9", "simhash": "1:96a78d0777cc2649", "word_count": 917 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALTON B. BELL v. MARY LOU SMITH." ], "opinions": [ { "text": "Bobbitt, J.\nThe only question is whether Judge Campbell erred in approving and confirming the clerk\u2019s order.\nOn former appeal, this Court said: \u201cIf 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 . . . 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.\u201d In this connection, see Moore v. Lewis, 250 N.C. 77, 80, 108 S.E. 2d 26, and cases cited.\nPlaintiff contends the clerk\u2019s order is based on the unverified motion of defendant\u2019s counsel; that the motion contains no statement and the clerk\u2019s order contains no finding that defendant was non compos mentis; and that, absent an evidence-supported finding that defendant was non compos mentis, the clerk had no authority under G.S. 1-65.1 to appoint a guardian ad litem for defendant. In this connection, it is noted that Judge Campbell, whose authority was inherent and not statutory, approved and confirmed the clerk\u2019s order. Hence, the appointment of the guardian ad litem on December 14, 1964, rests on the authority of both clerk and judge. In this connection, see Carraway v. Lassiter, 139 N.C. 145, 152, 51 S.E. 968.\nThe clerk and Judge Campbell acted on the basis of undisputed facts disclosed by the records of the S\u00faperior Court of Gaston County, to wit:\nDefendant Mary Lou Smith, indicted for murder, was arraigned at October 7, 1963 Criminal Session. Upon arraignment, pursuant to suggestion by her counsel, a jury was selected and impaneled and evidence was presented by defendant and by the State on the following issue: \u201cDoes the defendant have sufficient mental capacity to understand the nature and quality of the charges against her, and to plead to the Bill of Indictment, and to assist her counsel in her defense?\u201d The jury, after hearing the evidence and argument of counsel, answered this issue, \u201cNo,\u201d and thereupon the presiding judge committed defendant to the Dorothea Dix State Hospital in Raleigh, N. C., as provided in G.S. 122-84. She was confined in said hospital when served with summons and complaint herein. Too, she was confined in said hospital on December 14, 1964. Counsel who represented defendant at said October 7, 1963 Criminal Session have represented and now represent defendant in this action.\nThe foregoing facts constituted ample basis for the orders of December 14, 1964 relating to the appointment of Gaines as guardian ad literm, for defendant. The validity of these orders is unaffected by the circumstance that the clerk had received a letter \u201cfrom the Superintendent of the hospital which states that she\u2019s now able to plead to the Bill of Indictment and to stand trial.\u201d\nThe orders of December 14, 1964 (1) are interlocutory, and (2) do not affect any substantial right of plaintiff. The said orders are not relevant to the issues for determination in plaintiff\u2019s action. Incidentally, it is noted that the answer filed by the guardian ad litem, consists of a general denial of plaintiff\u2019s allegations. Hence, notwithstanding no reason appears to disturb said orders of December 14, 1964, dismissal of plaintiff\u2019s appeal is considered the appropriate disposition thereof. G.S. 1-277; G.S. 1-277; Buick Co. v. General Motors Corp., 251 N.C. 201, 205, 110 S.E. 2d 870, and cases cited.\nAppeal dismissed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "W. N. Puett for plaintiff appellant.", "Hollowell & Stott, Frank Patton Cooke and Joseph B. Roberts, III, for defendant appellee." ], "corrections": "", "head_matter": "ALTON B. BELL v. MARY LOU SMITH.\n(Filed, 3 March, 1965.)\n1. Insane Persons \u00a7 10\u2014\nWhere the Superior Court on appeal affirms the clerk\u2019s order appointing a guardian ad litem for defendant, the order of appointment rests upon the statutory authority of the clerk and the inherent authority of the court, and such appointment will not be set aside for the want of a finding that defendant was non compos mentis (G.S. 1-65.1).\n2. Appeal and Error \u00a7 3\u2014\nThe appointment of a guardian ad litem for a defendant is an interlocutory order, and when it appears that the guardian filed answer containing a general denial of plaintiff\u2019s allegations, the appointment does not affect a substantial right, and an appeal from the order will be dismissed as premature.\nAppeal by plaintiff from Campbell, J., December 14, 1964 Session of GASTON.\nPlaintiff instituted this action November 30, 1963 to recover for damages, actual and punitive, allegedly caused by false, slanderous and malicious statements of defendant.\nThe order affirmed by this Court on former appeal, Bell v. Smith, 262 N.C. 540, 138 S.E. 2d 34, overruled a motion by defendant\u2019s counsel to quash the service of summons and complaint made on defendant while confined in the State Hospital for the insane.\nIn the superior court, all on December 14, 1964, the following occurred: On motion of defendant\u2019s counsel, the clerk of the superior court appointed Robert E. Gaines as guardian ad litem for defendant \u201cto act for and defend this action in her behalf.\u201d Gaines accepted said appointment and as such guardian ad litem verified and filed an answer in defendant\u2019s behalf. Plaintiff moved before Judge Campbell, then presiding over the December 14, 1964 Session, that the clerk\u2019s order appointing said guardian ad litem be vacated. Judge Campbell found \u201cas a fact\u201d that \u201csaid Order of Appointment was proper\u201d and entered an order approving and confirming the clerk\u2019s order. Plaintiff appealed.\nW. N. Puett for plaintiff appellant.\nHollowell & Stott, Frank Patton Cooke and Joseph B. Roberts, III, for defendant appellee." }, "file_name": "0814-01", "first_page_order": 852, "last_page_order": 854 }