175 S.E. 161 | N.C. | 1934
SCHENCK, J., took no part in the consideration or decision of this case. On 14 April, 1933, Mrs. J. P. Dewey made an affidavit before the clerk of the Superior Court of Davidson County, stating that J. P. Dewey was insane. Thereupon the clerk examined certain witnesses and issued a warrant of commitment, directing that Dewey be confined in the State Hospital. Thereafter, on 10 October, 1933, Dewey filed a petition before the clerk of the Superior Court alleging that the said *715 lunacy proceedings and order made by the clerk were entered "without notice to this petitioner, and without the clerk of the Superior Court issuing an order commanding the sheriff to summon a jury of twelve men to inquire into the state of mind or condition of your petitioner. . . . Nor did your petitioner have any knowledge or information that any proceedings had been or were undertaken concerning his competency and fitness to manage his own affairs. . . . That your petitioner in July, 1933, after being informed of the purported proceedings, and that said purported order declaring him a lunatic had been entered, appeared before the clerk of the Superior Court of Davidson County and requested that said order be stricken from the record," etc. The petitioner further prayed "that this cause be reinstated upon the docket; that the purported petition be dismissed and that there be an order entered striking from the records of this court the purported order," etc.
The clerk of the Superior Court heard the petition and found as a fact "that no notice was served upon the petitioner; that no order was made demanding the sheriff to summon a jury, nor was any jury summoned, organized or sworn to pass upon the state of mind and condition of the petitioner; that the petitioner did not have any knowledge of the entry of the judgment as appears of record and set out in the petition."
Thereupon the clerk denied the motion of petitioner and he appealed to the Superior Court.
After hearing the cause in the Superior Court the trial judge decreed as follows: "This cause coming on to be heard . . . upon petition to dismiss and strike from the records the judgment of insanity against J. P. Dewey and appeal from E. C. Byerly, clerk of the Superior Court, and it appearing to the court that the same should be remanded to the clerk of the Superior Court for further hearing:
"Now, therefore, it is ordered and adjudged that this action be and it is hereby remanded to the clerk of the Superior Court of Davidson County to convene or hold a hearing of the idiocy, inebriecy or lunacy of J. P. Dewey as he is required by law," etc.
From the foregoing judgment the petitioner appealed.
The petitioner apparently takes the position that the order of the clerk confining him in the State Hospital should be declared null and void and that he be discharged. This contention cannot be maintained. The affidavit filed in accordance with C.S., 2285, conferred jurisdiction upon the clerk. However, as the order of the clerk was *716
made in direct violation of the provision of said statute, such order was without warrant of law. Nevertheless the petitioner made a motion in the cause expressly requesting that the cause "be reinstated upon the docket," and upon the failure of the clerk to strike out the original order, he appealed to the judge of the Superior Court. Consequently, the matter was before the judge and he had the power to deal with it. A similar situation is disclosed by In re Anderson,
Affirmed.
SCHENCK, J., took no part in the consideration or decision of this case.