Groves v. . Ware
109 S.E. 568
N.C.
1921
Check Treatment
Adams, J.

The legal propositions upon which the demurrer is based are these: (1) Forest M. Groves was not personally served with summons; (2) the pretended appointment of his guardian is void; (3) C. S., 2287, is unconstitutional. We shall consider the proposition seriatim.

C. S., 451, provides that if any defendant in an action or special proceeding is non compos mentis he must defend by his general or testamentary guardian, and if he shall have no general or testamentary guardian, and shall have been served with summons, the court may axapoint a guardian ad litem to defend in his behalf. The requirement of the statute as to the service of a summons on a person who is non compos mentis should be strictly observed, but the question here presented concerns the legal effect of a failure to make such service. The guardian ad litem accepted service, and presumably performed his statutory duties. In Matthews v. Joyce, 85 N. C., 258, Smith, C. J., said: “While, according to recent decisions, jurisdiction over the person of infants is acquired only as in the other cases by the service of process on them, and then it is competent to appoint, in case there is no general guardian, a guardian ad litem to act in their behalf and to protect their interests so as to bind them by judicial action, a different practice has long and almost universally prevailed in this State, and this power of appointment has been generally exercised without the issue of process, for the reason that no practical benefit would result to the infant from such service on him, and the court always assumed to protect the interests of such party, and to this end committed him to the defense of this special guardian.” Practically to the same effect is the language of Uolce, J., in Rawls v. Henries, 172 N. C., 218: “The facts in evidence strongly tend to show that the proceedings were in all respects regular and that defendant’s title has never been open to question; but were it otherwise, and by reason of the fact that summons was not personally served on the minor, our authorities are very uniformly to the effect that the interest of the minor having been presented, and an answer having been filed by his general guardian or guardian ad litem, the failure to serve on the minor personally was only an irregularity, to be corrected, if at all, by motion in the cause. Harris v. Bennett, 160 *557 N. C., 339; Glisson v. Glisson, 153 N. C., 185; Rackley v. Roberts, 147 N. C., 201; Carraway v. Lassater, 139 N. C., 145; Carter v. Rountree, 109 N. C., 29; Matthews v. Joyce, 85 N. C., 258. And these authorities are to the effect that, even when properly applied for, an irregular judgment is not to be set aside as a conclusion of law because of the irregularity, but only on a show of merits, and when the complaining party has proceeded with proper diligence.”

It is insisted in the next place that the clerk’s order appointing a guardian for Forest M. Groves is void, because the clerk had no legal right to make such appointment upon the certificate of Dr. Hall. O: S., 2286, is as follows: “If any person is confined in any hospital for insane persons, in any state, territorial, or governmental asylum or hospital, in this State or any other state or territory, or in the District of Columbia, the certificate of the superintendent of such hospital declaring such person to be of insane mind and memory, which certificate shall be sworn to and subscribed before the clerk of the Superior Court or any notary public, or the clerk of any court of record of the county in which such hospital is situated, and certified under the seal of court, shall be sufficient evidence to authorize the clerk to appoint a guardian for such idiot, lunatic, or insane person.”

It was evidently intended by the General Assembly that the certificate of insanity should be received and accepted as evidence only when made by the superintendent of a hospital which is subject to state, territorial, or governmental control, and not when made by the manager or superintendent of a private institution, who occupies no public official position and is not directly subject to governmental supervision. The complaint alleges that Westbrook Sanatorium is a private institution, and for this reason we are of opinion that the certificate of Dr. Hall was not such as the statute contemplates, and did not authorize the clerk’s appointment of the guardian.

The complaint alleges, however, that Forest M. Groves was restored to sound mind and memory, and thereafter ratified the proceedings both for partition and for the allotment of the widow’s dower. The demurrer admits this allegation; but the defendants contend that the alleged order of restoration to sanity was based upon a proceeding which is unconstitutional ; that the jury was composed of six men, instead of twelve; and that Forest M. Groves was deprived of his property without due process of law. This contention presents the third ground of objection to the complaint.

O. S., 2287, provides that when any insane person becomes of sound mind and memory, a petition in his 'behalf may be filed before the clerk of the Superior Court of the county of his residence setting forth the facts; whereupon, a jury of six freeholders shall be summoned to inquire *558 into tbe sanity of tbe person alleged to be sane, and if tbe jury shall find him to be sane, such person may make contracts and sell bis property.

Tbe complaint alleges that tbe fact of Groves’ restoration was inquired into and determined by a tribunal created under tbe provisions of tbis statute.

It is not necessary to discuss tbe question at length. That a state cannot deprive a person of bis property without due process of law does not necessarily imply that all trials in tbe state courts shall be by a jury composed of twelve men. Maxwell v. Dow, 176 U. S., 603; Walker v. Sauvinet, 92 U. S., 92. Nor is tbe contention of tbe defendants necessarily determined in their favor by Article I, section 19, of tbe Constitution of North Carolina. Tbe right to a trial by jury, which is provided in tbis section, applies only to cases in which tbe prerogative existed at common, law, or was procured by statute at tbe time tbe Constitution was adopted, and not to those where tbe right and tbe remedy with it are thereafter created by statute. 16 R. C. L., 194. In Lindsay v. Lindsay, 45 L. R. A. (N. S.), 914, tbe Supreme Court of Illinois, in a discussion of tbe question presented here, said: “On tbe trial of tbe case before tbe county court, a jury of twelve men was demanded and was denied.” Tbe statute, as we have said, provided for trial by a jury of six. Upon tbis question tbe Court said: “Tbe constitutional provision that ‘the right of trial by jury, as heretofore enjoyed, shall remain inviolate,’ does not apply. Tbis is not a proceeding according to tbe course of tbe common law, in which tbe right of a trial by jury is guaranteed, but tbe proceeding is a statutory one, and tbe statute, too, enacted since tbe adoption of tbe Constitution. There was not, at tbe time of such adoption, tbe enjoyment of a jury trial in such a case. In reference to tbis subject, generally, Judge Cooley, in bis work on Constitutional Limitations, p. 319, remarks: ‘But in those cases which formerly were not triable by jury, if tbe Legislature provide for such a trial now, they may doubtless create for tbe purpose a statutory tribunal composed of any number of persons, and no question of constitutional .power or right could arise.’ ”

Tbe proceeding under section 2287 was not according to tbe course of tbe common law, and tbe constitutional inhibitions do not apply. Tbe judgment overruling tbe demurrer is

Affirmed.