The first one is that in the instant case the action was brought by a next friend, which was permissible under the law. Lamb v. Perry, 169 N.C. 436, 86 S.E. 179; Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874; Hicks v. Beam, 112 N.C. 642, 17 S.E. 490. The second reason is that in Davis v. Davis, supra, the jury found there was no fraud or undue influence involved in the procurement of the contested conveyance. Here, the jury found that Elva P. Hammond on 5 September 1962 was mentally incompetent to execute the deed, and also found that the defendants Bullard obtained the deed in question by fraud and undue influence.
Since the next friend of an infant plaintiff is an officer of the court subject to judicial supervision (Tate v. Mott, 96 N.C. 19, 2 S.E. 176), and since an infant plaintiff who sues by a next friend is as much bound by the judgment of the court as an adult (Settle v. Settle, 141 N.C. 553, 54 S.E. 445), it may be argued with much reason that a defendant has no legal standing entitling him to question the court's selection of a next friend for an infant plaintiff. Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874. Be this as it may, the trial judge did not err in rejecting the challenge to the appointment in the case at bar.
And, not being pleaded, it must be considered as waived. Hicks v. Beam, 112 N.C. 642, 17 S.E. 490; Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874; Cole v. Wagner, 197 N.C. 692, 150 S.E. 339; Acceptance Corp. v. Edwards, 213 N.C. 736, 195 S.E. 613. Third: The third contention is similar to the second, just above considered, and is so treated in brief of appellant.
The Huntley case is in the same category, the two causes (560) being the same, assault and battery. The same may be said of Carroll v. Montgomery, 128 N.C. 278. The question whether it was necessary that there should be an affirmative finding by the jury of the cause for the arrest upon an issue submitted to them was not, therefore, presented in those cases, as in three of them such fact was found, and in the Peebles case the Court held that plaintiff was not entitled to the execution, because there was no proper allegation in the complaint and no order of arrest had been served.
Why set aside a judgment for irregularity, at the instance of plaintiff, which was rendered to the full limit of a justice's jurisdiction, and has already been paid? And, so far as we have examined, the authorities are uniform that the defect suggested, in reference to the appointment of the next friend, is at most only an irregularity. Carroll v. Montgomery, 128 N.C. 278; Tate v. Mott, 96 N.C. 19; Fowler v. Poor, 93 N.C. 466; 14 Enc. Pl. Pr., 1016; 22 Cyc., 641. In 14 Enc. Pl. Pr., supra, it is said: "Where the proceedings are conducted without the intervention of a next friend, or a guardian ad litem, in a case where one is required or where the appointment is irregular, the judgment is irregular and voidable.
The Code, sec. 291, subsec. 1; Carroll v. Montgomery, 128 N.C. 278; Kinney v. Laughenour, 97 N.C. 325. The judge who made the order for the execution was the judge residing in the district, but was not the judge who was at that time holding the courts of the district, and, for that reason, the defendant contends that the order was void, the judge not having jurisdiction.