In Re Sylivant

Oonnoe, J. It is provided by statute in this State that “any person, in behalf of one who is deemed an idiot, inebriate or lunatic, or incompetent for want of understanding to manage his own affairs, by reason of the excessive use of intoxicating drinks, or other cause, may file a petition before the clerk of the Superior Court of the county where such supposed idiot, inebriate or lunatic resides, setting forth the facts duly verified by the oath of the petitioner; whereupon such clerk shall issue an order, upon notice to the supposed idiot, inebriate or lunatic, to the sheriff of the county, commanding him to summon a jury of twelve men to inquire into the state of such supposed idiot, inebriate or lunatic. “Upon the return of the sheriff summoning said jury, the clerk of the Superior Court shall swear and organize said jury and shall preside ■over said hearing, and the jury shall make return of their proceedings under their hands to the clerk, who shall file and record same, and he shall proceed to appoint a guardian of any person so found to be an idiot, inebriate, lunatic, or an incompetent person by inquisition of a jury. “Either the applicant or the supposed idiot, inebriate, lunatic, or incompetent person may appeal from the finding of said jury to the next term of the Superior Court, where the matters at issue shall be tried regularly de novo before a jury.” C. S., 2285. Prior to the filing of her petition in this proceeding the petitioner had been duly adjudged, upon the finding of a jury, non compos mentis, in accordance with the provisions of the foregoing statute, and thereupon Hattie White had been duly appointed as her guardian. It is further provided by statute that “where any insane person or inebriate becomes of sound mind and memory or becomes competent to manage his property he is authorized to manage, sell and control all his property in as full and ample a manner as he could do before he became insane or inebriate, and a petition in behalf of such person may be filed before the clerk of the Superior Court of the county of his residence, setting forth the facts, duly verified by the oath of the petitioner, whereupon the clerk shall issue an order, upon notice to the person alleged to he no longer insane or inebriate, to the sheriff of the county, commanding him to summon a jury of six freeholders to inquire into *346 the sanity of the alleged sane person, formerly a lunatic or the sobriety of sucli alleged restored person, formerly an inebriate. Tbe jury shall make return of their proceedings under their hands to the clerk, who shall file and record the same, and if the jury shall find that the person whose mental or physical condition was inquired into is sane and of sound mind and memory or is no longer an inebriate, as the case may be, the said person is authorized to manage his affairs, make contracts, and sell his property, both real and personal, as if he had never been insane or inebriate.” C. S., 2287. No provision is made in the foregoing statute for an appeal from the finding of the jury or from the order of the clerk pursuant to such finding. 'Whether, in a proper case, such finding or such order may be reviewed by the Superior Court pursuant to a writ of certiorari is not presented by this appeal. In the absence of a provision in the statute under which this proceeding was begun and prosecuted, for an appeal from the order of the clerk to the Superior Court, there was error in the refusal of the court to dismiss the appeal of Hattie White, guardian in this proceeding. See Ray v. Ray, 33 N. C., 357, 3 C. J., p. 649, sec. 512. As there was error in the refusal of the court to dismiss the appeal of the guardian, the question as to whether there was error in the order dismissing the proceeding is not presented by this appeal. However, it would seem that at most the order of the clerk of the Superior Court of Greene County in this proceeding was voidable and not void, and that there was error in the order of the court dismissing the proceeding. See Tate v. Mott, 96 N. C., 19. In accordance with this opinion the order and judgment of the Superior Court in this proceeding is Reversed.