Wood v. Throckmorton

26 Colo. 248 | Colo. | 1899

Per Curiam.

The question raised by the motion to dismiss, is, whether or not this action is necessary, or should be permitted. Plaintiff in error is mentally incapacitated from directing his affairs, and they must be managed by some one for him. Every person has the right to appeal to the courts for the purpose of redressing real or fancied wrongs. Those who are mentally capable of choosing for themselves what actions should or should not be maintained in their behalf, can do so without question, or respect to the necessity therefor; but not so with persons non compos mentis. ' Not being able to determine for themselves what course to pur.sue with regard to such matters, necessarily it must -be determined for them, and their rights presented to the courts for adjudication, through the intervention of a next friend, or some one authorized to represent them.

Defendant in error, Throckmorton, under his appointment by the probate court of Kansas, has acted as conservator for plaintiff in error since 1885. His ward, having interests in this state which it was necessary to protect, in conjunction with his codefendant in error as assistant, he was appointed conservator of his estate in this state. These interests were in controversy and being litigated in the United States circuit court for Colorado. It is not claimed that either of these parties has been unfaithful in the discharge of the trusts imposed; on the contrary, it appears they have discharged them with fidelity; have obtained a large judgment in favor of their ward, and an interest in valuable mining property. They have been recognized by the court in which this litigation was pending, and the action of the county court of Arapahoe in appointing them, upheld. The only reason which plaintiff in error urges in support of the proposition that the orders appointing them be vacated, is, that the county court was without jurisdiction, and he is not bound by them ; but what possible injury to the interests of plaintiff in error can result, if the conservator and his assistant are permitted to continue to execute the trust which at their instance has been imposed upon them by the lower court? None is suggested. It is stated in the affidavit of Thomas E. Wood, that the immediate relations of plaintiff in error are desirous .of having the administration of his affairs confided to relatives. It appears from affidavits filed, that those at whose instance the motion to vacate was made below, and the writ of error sued out in this court, have allowed the son and brother to remain in the asylum all these years, without any attention upon their part, or attempt to alleviate his condition; nor have they manifested any interest in his behalf until the successful termination of the litigation above referred to; such conduct certainly does not tend to inspire confidence in those who have been guilty of it, or appeal with any degree of persuasiveness to their claims for recognition in the management of the affairs of the unfortunate lunatic, upon the ground of relationship. The welfare and interest of plaintiff in error are matters of prime importance, which must receive the careful consideration of the court before any litigation claimed to be instituted on his behalf is allowed to progress; and to that end, it is proper to consider its necessity or result; for it is not every action, instituted by the next friend of one non compos mentis, which should be permitted to continue; otherwise, the interests of the incompetent may be jeopardized, and his estate wasted. Proper and necessary suits for the benefit of incompetents should be encouraged, and the parties at whose instance they may be commenced, protected; but it is in the discretion of the court to allow an action so instituted to proceed or not, as it may he governed by a consideration of its necessitjr, for the protection of the interests of one mentally incapable of judging in this respect for himself. Whetstone v. Whetstone, 75 Ala. 495; Nalder v. Hawkins, 2 Mylne & Keen, 243; Plymyton v. Hall, 55 Minn. 22; Story’s Eq. Pl. § 66. If the proposition advanced by counsel for plaintiff in error should be sustained, it would still be necessary that some one should represent and protect the interests of William H. Wood in this state. If the orders appointing defendants in error are vacated, other pro'ceedings would, doubtless, be instituted, with the view of securing the appointment of a proper person to succeed them. This delay and expense is wholly unnecessary; there is nothing to be gained by pursuing such a course. The interests of the estate will be no better protected if it is; and for these reasons, this litigation should not be waged. The writ of error is dismissed, at the expense of Thomas E. Wood.

Writ dismissed.