183 Ga. 218 | Ga. | 1936
The petition of Bryant Rigell, by Ben J. Rigell and others as next friends, alleges that for more than two years before the bringing of the suit he has been mentally incompetent to manage his business affairs, and is now non compos mentis and in a sanitarium; that no legal guardian has ever been appointed for him or his estate; that the said estate is of the approximate value of $100,000 or other large sum, consisting of cash, stocks, government bonds and stamps, farms, city real estate, rentals, mercantile business, choses in action, etc.; that the defendant, J. M. Parrish, by fraudulent practices upon the incompetent Rigell, has obtained for himself an unrestricted and unlimited power of attorney under date of March 6, 1936, a copy of which is attached to the petition; that for the reasons alleged this power of attorney is void and should be surrendered and canceled;
As to the first assignment, it was early ruled that a court of equity may, in a proper case, appoint a temporary receiver even before an answer to a petition is filed. Jones v. Dougherty, 10 Ga. 273 (2); Williams v. Jenkins, 11 Ga. 595; Johns v. Johns, 23 Ga. 31 (3). In some cases of emergency such action may be taken even before a petition is filed. Webb v. Hicks, 117 Ga. 335, 340 (43 S. E. 738); Young v. Hamilton, 135 Ga. 339 (69 S. E. 593, 31 L. R. A. (N. S.) 1057, Ann. Cas. 1912A, 144). It will now be determined whether, under the allegations of the petition in the present case, a proper instance is presented. The action was first instituted by the named brothers and sisters as next friends of Bryant Eigell, and by amendment it was styled a suit of him by the brothers and sisters as next friends. This change was allowable by amendment, though not necessary. The two designations are in substance the same, and a proper suit may be maintained under either. Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243); Dent v. Merriam, 113 Ga. 83 (3) (38 S. E. 334); Hart v. Atlanta Terminal Co., 128 Ga. 754, 773 (58 S. E. 452); Linder v. Brown, 137 Ga. 352 (8) (73 S. E. 734). It is well settled that a suit by any competent person may be maintained on behalf of one who is insane, though not already legally so adjudicated. Reese v. Reese, 89 Ga. 645 (15 S. E. 846); Dent v. Merriam, supra; LaGrange Mills v. Kener, 121 Ga. 429 (49 S. E. 300); Wynne v. Fisher, 156 Ga. 656 (119 S. E. 605); Wilson v. Wilson, 174 Ga. 238 (162 S. E. 540); Grinnell v. Grinnell, 174 Ga. 904 (2) (164 S. E. 681). This provision of the law is a humane and necessary one, because a person who is insane can not personally maintain a suit. Thomas v. Thomas, 145 Ga. 111 (88 S. E. 584); Spooner v. Spooner, 148 Ga. 612 (97 S. E. 670). Through a next friend the protection of the law may be claimed until the mental status of such person is adjudicated, and the question of
It is urged by the plaintiff in error (the defendant) that no receiver is necessary, and that a full and complete remedy was available from a court of ordinary. “'It would seem from the authorities that there is no substantial difference between a prochein ami [next friend] and a guardian ad litem. The former denomination is usually applied when the representation is for an infant plaintiff, and the latter when it is for an infant defendant. But in either case the representative of the infant is regarded as an officer of court. Story’s Eq. Pl. [10th ed.] §§ 57, 58, note 2.’ Sharp v. Findley, 59 Ga. 722, 729. The infant’s nearest relation
The Code, § 55-301, provides for the appointment of a receiver, not only when property is in litigation and the rights of parties can not otherwise be fully protected, but also “when there may be a fund or property having no one to manage it.” It requires no strained construction to say that the words “having no one to
As to the ground of the general demurrer that no cause of action was set forth, it is uniformly held that an equitable petition will not be dismissed if some of the allegations and prayers call for some of the relief prayed. Under the ruling in the first division of this opinion, the allegations of the petition set forth grounds for cancellation of the power of attorney. An examination of the copy attached to the petition shows it to be the grant of a general power, but without any consideration from the donee, and not coupled with an interest. Plainly such an instrument is revocable at any time. The continuance of the power is on the theory that the donor still acquiesces in his act. The relationship- is one -oE principal and agent. If the donor in the present instance be insane, as in the petition he is alleged to be, he has not the capacity to exercise the right of revocation. A suit for him by a next friend is cognizable in equity to cancel and cause to be surrendered such a power of attorney, if it be proved on the trial of the cause that the alleged incompetent is in fact insane. This is upon the same principle that a deed under such circumstances may be set aside in a suit by a next friend. As to the latter, see Dent v. Merriam, supra. Likewise, it is within the power of the court to enjoin the donee from exercising any of the powers conferred by the power of attorney, from disposing of or changing the status of the assets of the incompetent, and also to provide for an accounting. As shown in the first division of this opinion, it has been held in other jurisdictions that a power of attorney becomes functus officio by operation of law when it is shown that the donor has become insane. Under the allegations of the petition it is shown that an acute and deplorable situation surrounds the alleged incompetent. If, as prayed for, the power of attorney is decreed to be void for any reason alleged, there would be no one authorized to take charge of and manage the property of the incompetent. It would be shocking to conscience and the dictates of justice if a court of equity should be either unable or unwilling to extend its protective power to preserve the property of one mentally incom
The present suit need not be discontinued or abate, because upon the appointment of a legal guardian he may, when a suitable amendment is filed, he substituted in the place of the next friends. The ruling in cases by next friends, that where, in the absence of an allegation that a legal guardian has been applied for, the petition is subject to special demurrer pointing out the defect, is a recognition of the preferred right of a legal guardian to act as the representative of one not sui juris. In the present case there is no ground of the special deinurrer which goes to the failure to allege a pending application for a guardian, and without it the suit may stand until a guardian can assert his priority of control. His substitution will not involve the addition of a new party plaintiff. The next friend or the guardian is merely the representative of the incompetent. The suit is essentially that of the ineom
For the reasons shown in the foregoing part of this opinion, there is no merit in any of the special grounds of the demurrer.
Judgment affirmed.