Opinion
(December Term, 1844.)
An appeal does not lie from an order of the county court appointing a guardian to a lunatic or idiot.
APPEAL from BLADEN, Fall Term, 1844; Bailey, J.
Strange, W. Winslow, and Reid for plaintiff. (15)
No counsel for defendant.
The record in this case, taken in connection with the statement made by the presiding judge, shows that at March Term, 1844, of Bladen County Court a petition was filed by the plaintiff, suggesting to the court that Martha Lewis was a lunatic and was wasting her property, and calling upon the court to issue a writ de lunatico inquirendo. The prayer of the petition was granted, and a writ issued to the sheriff, and at August Term following was returned, together with the inquest of the jury. The jury found that Martha Lewis was a lunatic, and at the same term the plaintiff was by the court appointed her guardian. From this order the defendant, as the executor of Richard Lewis, prayed an appeal to the Superior Court, which was granted; and in the Superior Court, on the motion of the plaintiff, through his counsel, the appeal was dismissed, and the defendant appealed to the Supreme Court.
The only question before us is, Has the defendant a right to appeal? The act granting appeals from the county to the Superior Court, Rev. Stat., ch. 4, sec. 1, provides: "When any person, plaintiff or defendant, or who shall be interested, shall be dissatisfied with the sentence, judgment, or decree of any county court, he may appeal," etc. This section evidently refers to cases of suits or actions in court where there are adversary claims. This is not such a case. The county court is notified, which may be done by any one, that within their jurisdiction is one of those unfortunate individuals whose situation demanded the care and attention of the court, and, in the discharge of a humane duty imposed upon them by law, upon being satisfied, in a legal manner, that the fact was so, they appointed a guardian. This case, then, is not provided for in this section; but if it were, the defendant has not brought himself within its provisions. He is neither a plaintiff nor a defendant, nor has he shown that he has any interest in the matter whatever. No connection is shown between him or his intestate and Martha Lewis, nor does it appear in what manner the appointment of a guardian to her concerns him. For aught that is disclosed to us, he is a mere intermeddler who has officiously stepped forward to stop the action of the court. The second section of the act extends to cases which are mostly ex parte, but in which others may have an interest, and to which they may become parties if they please. The first clause applies to the appointment of guardians of infants. Lunatics and idiots are not included in this or any other clause of this section. Nor is there any provision in the act concerning idiots and lunatics for an appeal by any one from the county to the Superior Courts. But in the case of the appointment or removal of guardians to infants the law does not give the right of appeal indiscriminately to any and every one who may think proper to ask it, but extends it only to those who (16) may be injured or aggrieved by the order. In this case there is no pretense set up that the defendant was injured or aggrieved by the order appointing the guardian. As the section under consideration embraces a class of cases which are in their nature mostly ex parte, and enumerates specially those in which parties not appearing on the record may have an interest and in which an appeal is granted, and as the appointment of a guardian in lunacy is not among the enumerated cases, we hold that in this case no appeal lay by any one.
PER CURIAM. No error.
Cited: Ray v. Ray, 33 N.C. 358.