In Re Jeffress

Stacy, C. J. Tbe question for decision is whether tbe application of tbe trustee for a review of tbe restoration proceeding should be entertained. Tbe trial court answered in tbe negative upon two grounds, (1) because tbe trustee is not such a party as may ask for a review, and (2) for that no error in tbe proceeding bas been shown. "We are inclined to a different view. In limine, it will be observed that on petition before tbe clerk under C. S., 2285, to declare a person incompetent from want of understanding to manage bis affairs, which may be filed by any person in behalf of the one deemed incompetent, either the petitioner or the respondent is permitted to appeal from tbe finding of tbe jury to tbe next term of the Superior Court, when tbe matters at issue are to be regularly tried de novo before a jury. Conversely, no such right of appeal is provided by C. S., 2287, when tbe proceeding is for restoration to competency. Ray v. Ray, 33 N. C., 357. In consequence of the decision in In re Dry, 216 N. C., 427, 5 S. E. (2d), 142 (1939), tbe General Assembly of 1941 amended tbe restoration statute so as to provide “that in all cases where a guardian hás been appointed . . . said guardian shall be made a party to such action before final determination thereof.” Ob. 145, Public Laws 1941. On petition before tbe clerk under this section, which may be filed by tbe person formerly adjudged incompetent, or by any friend, relative or guardian of such person, and wherein tbe guardian is required to be made a party before final determination, tbe clerk is directed, upon notice, to issue an order to tbe sheriff of tbe county commanding him to summon a jury of six freeholders to inquire into tbe matter, and tbe jury is enjoined to “make return of their proceedings under their bands to tbe clerk, who shall file and record tbe same.” Hence, tbe proper method of review would be by application for certiorari. In re Sylivant, 212 N. C., 343, 193 S. E., 422; In re Cook, 218 N. C., 384, 11 S. E. (2d), *275 142; Unemployment Compensation Com. v. Kirby, 212 N. C., 763, 194 S. E., 474. If tbe guardian or trustee be sufficiently interested to make bim .a necessary party to tbe restoration proceeding before final determination, it would seem tbat sucb guardian or trustee bas sufficient interest to ask for a review, should be be aggrieved or adversely affected by tbe result. In re Bayer, 108 Wash., 565, 185 P., 606; Hunter v. Buchanan, 87 Neb., 277, 127 N. W., 166, 29 L. R. A. (N. S.), 147, Ann. Gas. 1912 A, 1072; 2 Am. Jur., 961; 2 R. C. L., 55. As tbe proceeding before tbe clerk is summary in ebaracter, In re Dry, supra, witb tbe result falling short of res judicata, Johnson v. Ins. Co., 217 N. C., 139, 7 S. E. (2d), 475, it may be Brobdingnagian to speak of errors in tbe proceeding. Bethea v. McLennon, 23 N. C., 523. However, it appears tbat tbe clerk undertook to charge tbe jury. In this be arrayed tbe different contentions, instructed them as to tbe burden of proof, and ended witb these apparently conflicting peremptory instructions : 1. “I charge you, gentlemen of tbe jury, tbat if upon consideration of all tbe evidence you are satisfied by tbe greater weight thereof and find tbe facts to be as contended by tbe petitioner, and as testified to by those witnesses offered by tbe petitioner, then it is your duty to answer tbe issue Yes.” 2. “I charge you, gentlemen of tbe jury, tbat if you find from tbe evidence tbe facts to be as contended by tbe respondent and as testified by tbe witnesses offered by her, then it is your duty to answer tbe issue No.” Moreover, it is alleged that tbe finding of the jury is clearly contrary to the weight of tbe evidence. The clerk concluded tbat be was without authority to interfere with the verdict. To say tbat six freeholders selected by the sheriff, with no right of challenge, can decide tbe matter irrevocably, is to ascribe.to the statute an unusual grant of unbridled power. See Dowell v. Jacks, 58 N. C., 417; Smith v. Smith, 106 N. C., 498, 11 S. E., 188; Groves v. Ware, 182 N. C., 553, 109 S. E., 568; Bethea v. McLennon, supra. A reinquisition under C. S., 2285, would only be circuitous and needlessly repetitious. "Without further comment on the proceeding before the clerk, we think the showing is sufficient to warrant a review of tbe matter in tbe Superior Court. In re Dewey, 206 N. C., 714, 175 S. E., 161. By analogy, it would seem tbat tbe procedure provided in C. S., 2285, on appeal might appropriately be followed on sucb review. See Higdon v. Light Co., 207 N. C., 39, 135 S. E., 710; S. v. Carroll, 194 N. C., 37, 138 S. E., 339. Error and remanded.