Reese v. Reese, 89 Ga. 645

Reese v. Reese

89 Ga. 645 | Ga. | 1892

Simmons, Justice.

1. B. Earnest Reese brought an action in the statutory *651form against Thomas E. Watson and J. Forest Watson, upon a promissory note of the defendants to Benjamin T. Reese. Pending the action, John A. Bastón, as next friend of said Benjamin T. Reese, and Justin M. Reese for himself and as guardian'of Mattie Lee Clark, filed a petition in the same court, to enjoin the action from proceeding, and for the appointment of a receiver to recover and take charge of the proceeds, and for other relief. The substance of the petition will be found set out in the reporter’s statement. To this petition there was a general demurrer, and the overruling of this demurrer is the judgment complained of.

The allegations present a strong case for relief. It is alleged, among other things, that Benjamin T. Reese is the father of B. Earnest Reese, and that while non compos mentis and being moved by the fraud and undue influence of said Earnest, who is insolvent and a non-resident of the State, he turned over to him for collection and for management of the proceeds, the promissory note which is the subject of the suit here sought to be enjoined; and that said Earnest intends to use the action for the collection of the money for his own benefit, and to carry the money beyond the limits of the State and convert it to his own use in the consummation of his fraudulent purpose. From these allegations it is clear that the petition is not demurrable for want of equity, in so far as the action is brought by the next friend of Benjamin T. Reese for his benefit.

2. The point most strongly insisted upon by counsel for the plaintiff’ in error was, that no suit can be brought in behalf of a lunatic or person von compos mentis, except by a legal guardian appointed after the question of sanity or insanity has been tried by a commission of lunacy as provided by the code, §§1855 et seq. There is no statutory provision, however, which prevents a lunatic who is without a legal guardian from suing by *652any competent person as his next friend, and we know of no reason which, should preclude one from claiming the protection of the coui'ts until his mental status is adjudicated and a legal guardian appointed. The privilege of representation by next friend is accorded to all persons not sui juris, the code, §4179, declaring that they “ may appear, either by guardian or next friend, or guardian ad litem appointed by the court” ; and we think this applies as well to lunatics as to any other persons under disability, whether in its strict sense the phrase “not sui juris” may be properly applied to mental capacity or not. Looking to the general authorities on the subject, we find it laid down in a leading work on the law of insanity, that “ when a person is in fact insane, but has not. been so adjudged by a competent tribunal, or placed in charge of a committee or guardian, the courts, whether of Taw or equity, have jurisdiction to entertain suits brought by one as next friend of the insane person.” Buswell, Insanity, §120. And in 11 Am. & Eng. Enc. of Law, 126, it is said: “ Where a person is insane but has not been judicially adjudged so, suits both at law and in equity should he brought by some person as next friend.” Under our code it is in the power of the court to guard against representation by irresponsible persons and to see that the party at interest is as fully protected as if represented by a legal guardian, the section above quoted further providing that “the court may require such bond as shall protect the interest of the person under disability.”

3. Objections that some of the parties were improper or unnecessary,'or that some of the fact's alleged were superfluous or afforded no cause for relief, or that some of the relief prayed for was inappropriate, were matters for special demurrer at the first term, and on a general demurrer a petition should not be dismissed for these reasons. A demurrer which is merely general should be *653overruled if any part of the petition be sustainable, This demurrer being to the whole bill, and there being good matter for equity to deal with, the court did not err in overruling it. Hazlehurst v. Railroad Co., 43 Ga. 13; Lowe v. Burke, 79 Ga. 166. Judgment affirmed.