Hagins v. Aero Mayflower Transit Co.

Mallard, C.J. This case was consolidated with the three other cases in this Court for argument. The plaintiff in this case is the plaintiff in all the other cases, and the Redevelopment Commission of Greensboro is a defendant in all four cases. The other defendants herein are not involved in the other three cases. In this Court the plaintiff filed only one brief, but a separate record was filed in each case. In the record in this case, the plaintiff sets out five assignments of error. Number one relates to the appointment of the next friend, and number three relates to the order allowing compensa — 52 — tion of- the next friénd. These assignments of error are identical to the exceptions to tb|s same orders which have been discussed and ruled on in the case of Bernice T. Hagins v. Redevelopment Commission of Greensboro, decided this day, ante page 40, and each are overruled for the reasons stated therein. Thev plaintiff alleges in her complaint herein that on May 25, 1962, the defendants unlawfully took possession and control of certain of plaintiff’s personal property and removed it from her prem-. ises .and damaged it. She alleges that she is entitled to recover for such damages the-amount of $250 plus damages for the illegal exclusion of plaintiff from the use, possession and enjoyment thereof at the rate of $200 per month, and for punitive damages in the amount of $4;500. The defendant, Aero Mayflower Transit Company, Inc., denies the allegations of the complaint and asserts that it had nothing whatever fio. do with the hauling, carrying, moving, transportation or storage’ of any property of the plaintiff, and that it is not liable to the plaintiff in any sum. The. defendant Champion Storage and Trucking Company, Inr corporated, denies the allegations of the complaint and asserts that acting' in good faith and using the utmost care, it removed and stored certain, personal property from the premises pursuant to a court ofder signed by Judge Walter E. Crissman on May 23, 1962, and at the request of the Guilford County Sheriff’s Department and the Redevelopment Commission of Greensboro; that this property was stored by the South Atlantic Bonded Warehouse and not by the defendant Champion Storage and Trucking Company, Incorporated. The defendant Champion Storage and Trucking Company, Incorporated, also filed a counterclaim against the plaintiff and a cross-complaint against the co-defendant, Redevelopment Commission of Greensboro, for payment for services in the moving and storage of said property in the amount of $145.45 plus the sum of $10.45 pef month from April I, 1963, until the removal of said property from the possession. of the defendant, Champion Storage and Trucking Company, Incorporated. The Redevelopment Commission of Greensboro filed an answer denying the plaintiff’s right to recover against it herein, alleging that said property was removed by the Sheriff of Guilford County acting on the Writ of Assistance signed by Judge Walter E. Crissman. The plaintiff assigns as her second assignment of error the action of the court in entering a final judgment in this case on April 14, 1967. This judgment reads as follows: — 53 — "This Cause coming on to be 'heard upon opening of Court at 9:30 a.m., and being beard before the undersigned Resident Judge of the Guilford County Superior Court in High Point, N. C., on the 14th day of April, 1967; And it appearing to the Court, and the Court finding as a fact, based on the Order of the Court dated January 26, 1967, that the plaintiff is incapable of protecting her own rights or making decisions that would be to her best interest in this matter due to her apparent inability to comprehend judicial proceedings or to heed advice of counsel, and that the said Next Friend is the proper person to act herein on behalf' of the plaintiff; And it further appearing to the Court, and the Court finding as a fact, that Joseph Franks, appearing as Next Friend, notified Bernice T. Hagins by registered letter, mailed April 10, 1967, and received by her on April 11, 1967, 'as evidenced by return receipt signed by her as addressee, a copy of which letter and the original receipt have been, filed and made a part of the record of this case; And it further appearing to the Court, and the Court finding as a fact, that said Next Friend was notified on April 10, 1967, by Wallace Harrelson, Attorney at Law of Greensboro, North Carolina, that he had been retained by Bernice T. Hagins, and whereupon Wallace Harrelson was then notified by said Next Friend that this matter would be heard before the undersigned Judge in open court at 9:30 a.m. Friday, April 14, 1967, in the Superior Court, High Point, North Carolina; And it further appearing to the Court when this matter was called for hearing at 9:30 a.m., the following persons appeared: Joseph Franks, Jr., Next Friend; J. T. Williams, Jr., Esquire, for Aero Mayflower Transit Company, Inc., and Champion Storage and Trucking Company, Inc., and Archie Cannon, Esquire, for the Redevelopment Commission of Greensboro,, and the Court Commission of Greensboro, and the Court finds as a fact that neither Bernice T. Hagins, nor her attorney, Wallace Harrelson, appeared before the Court, and that neither communicated with the Court, or Next Friend regarding their appearance before the Court; And it further appearing to the Court, and the Court finding as a fact, from statements made in open court by Joseph Franks, Next Friend, and from a Supplemental Affidavit filed herein by — 54 — said Next Friend on the 7th day of April, 1967, which statements and Supplemental Affidavit found to be true. And it further appearing to the Court, and the Court finding as a fact, that the parties to this action have agreed to waive a trial by jury and that the Court shall hear the evidence in the case; And it further appearing to the Court that the plaintiff, through her Next Friend, has settled her claim herein against the Redevelopment Commission of Greensboro, one of the co-defendants, for the sum of $40,000.00; And it further appearing to the Court, and the Court finding as a fact, that Joseph Franks, Jr., Next Friend of the plaintiff, has examined the property of the plaintiff now located at Champion Storage and Trucking Company, Incorporated, warehouse and that said property is not in a damaged condition as a result of the movement or storage of the property by Champion Storage and Trucking Company, Incorporated, and Aero Mayflower Transit Company, Incorporated, as alleged in the complaint, and that in relation to said examination the Next Friend has filed an Affidavit herein; And it further appearing to the Court that the plaintiff, by and through the duly appointed Next Friend, and the defendants Champion Storage and Trucking Company, Incorporated, and Aero Mayflower Transit Company, Incorporated, and their successors and assigns, have agreed upon a compromise settlement and adjustment of all matters and things in controversy between them, by the terms of which compromise settlement agreement defendants Champion Storage and Trucking Company, Incorporated and Aero Mayflower Transit Company, Incorporated, and their successors and assigns, have agreed to accept the sum of $617.62 from the Redevelopment Commission of Greensboro, in full settlement and satisfaction for their services and the services of their successors and assigns rendered to the Redevelopment Commission of Greensboro and subsequently to the plaintiff since January 25, 1967, to thirty days after the date of this Judgment, in consideration of which the plaintiff hereby relinquishes, releases and discharges the said defendant, and their successors or assigns, from all matters and things alleged, or which might have been alleged, in the Complaint in this action ; — 55 — And the Court having investigated the matter of the proposed settlement and examined the Next Friend of the plaintiff with regard thereto, the Court is of the opinion, and finds as a fact, that the proposed compromise settlement is fair and reasonable and is for the best interest of the plaintiff; and, therefore, the Court is of the opinion, and finds as a fact, that the compromise settlement should be entered into by the Next Friend of the plaintiff and that the compromise settlement should be ratified, approved and confirmed by the Court; Now, therefore, by and with the consent of the plaintiff and the defendants, as evidenced by the signatures of the Next Friend of the plaintiff, and the attorney representing the defendants Champion Storage and Trucking Company, Incorporated, and Aero Mayflower Transit Company, Incorporated, and their successors and assigns, which signatures are hereinafter affixed to this judgment, It Is Ordered, Adjudged and Deoreed that the plaintiff shall have and recover nothing of the said defendants, or their successors and assigns, by reason of any of the matters and things alleged, or which might have been alleged, in the Complaint in this action; that the said defendants, and their successors and assigns, shall have and recover nothing further of the plaintiff by virtue of any services rendered to her with respect to her property up to and including thirty days from the date of the entry of this judgment as hereafter provided; that the plaintiff, or the plaintiff through her Next Friend, shall have thirty days from the date of this judgment to remove her property from the Champion Storage and Trucking Company, Incorporated’s warehouse, and in the event that the plaintiff shall not remove her property therefrom within said thirty days, Champion Storage and Trucking Company, Incorporated, shall have the power to sell said property as by law provided and apply the proceeds of said sale to such charges as it may incur subsequent to the thirty-day period; and that the costs of this action shall be paid by the defendant Redevelopment Commission of Greensboro.” In this final judgment the facts are set out in detail and the plaintiff makes no exception to any findings of fact. Upon a careful examination of the record, we find that the evidence before the Court fully supports the findings of fact and the findings of fact support the judgment. We must accept as established the facts set forth in the Court’s findings of fact. Weddle v. Weddle, 246 N.C. 336, 98 S.E. 2d 302; In re Estate of Cogdill, 246 N.C. 602, 99 S.E. 2d 785; In re — 56 — Hardin, 248 N.C. 66, 102 S.E. 2d 420; Trust Company v. Buchan, 256 N.C. 142, 123 S.E. 2d 489. The next friend is an officer of the court and a next friend, properly appointed, may negotiate, compromise and settle his ward's rights, provided his action is approved by the court. The judge found that the proposed settlement as set out in the foregoing judgment was fair and reasonable and was for the best interest of the plaintiff. Assignment of error number two is without merit and is overruled. Oates v. Texas Company, 203 N.C. 474, 166 S.E. 317. See also Hagins v. Redevelopment Commission of Greensboro, this day decided by this Court, ante page 40, and the cases cited therein. Plaintiff’s right to appeal from this judgment came into existence on April 14, 1967. Plaintiff took exception to the judgment but did not appeal therefrom. This judgment affected a substantial right. If she was sui juris, as she contends, she was required to give notice of appeal within ten days after notice of the judgment or within ten days after its rendition, and although she took exception thereto, she did not appeal. G.S. 1-279; G.S. 1-277. Plaintiff’s fourth and fifth assignments of error are to the action of the court in overruling her motion and signing the judgment in connection therewith. In view of what is said above and in view of the ruling in Bernice T. Hagins v. Redevelopment Commission of Greensboro, this day decided, ante page 40, we hold that these assignments of error are without merit and they are overruled. The judgment of Judge Crissman, dated October 3, 1967, denying, overruling and dismissing plaintiff’s motion to vacate and set aside the order dated January 26, 1967, and all judgments and orders entered in this case subsequent thereto, is affirmed. Affirmed. Brock and Britt, JJ., concur.