The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-27

a petition 10 sell ldnu TO make asset
. to pay debts. Prior to this time ha
a caveat had been filed to the will
Upon the fling of the~petition and be
fore summons had been served, tn
clerk appointed one T. e. Barrow
guardian ad Item of the infant de
PENDANTS. The said grand-d augh
ter had since the death o
her grandmother inter-marrieC
with one Carraway. The summon
was later served on Mr.. and Mrs Car
raway, the guardian ad Item an
other parties at interest. The Ian,
was afterwards sold and the sale con
firmed The papers We're lost and tn
facts found by the clerk The plain
| tiffs made many exceptions to tn
findings on the ground that there wa
| no evidence to support them. Their,
We're other exceptions attacking thu
regularity of the proceedings.
Held: 1. The approval of a judge
of findings of fact by the clerk i!
conclusive unless exceptions thereto
can be sustained.
2. a proceeding to sell land fol
| assets is based upon the theory that
the executor is acting by order of the
court and in such case, while all par
ties in esse having interest in the
land are brought in that they may
have an opportunity to show cause
persons not in eSSe who would after
wards come in interest are bound by
the judgment.
8. While the clerk of the Superior
court derives his authority from the
statute and, as q general principle is
limited to its terms, he may, acting
as and for the Superior court for
sufficient reason to protect the infant 8
interests appoint a guardian ad Item
at any time of the progress of special
proceeding.
A. While the appointment of a guar
dian ad Item before issue OF summons
is irregular, the failure to follow the
regular order is not fatal so as to
render the proceedings void when the
parties are afterwards served and
brought into court The rule is that
while judgments will be set aside upon
failure of process on infant parties.
mere Irregularities are not fatal In
the absence of fraud, a purchaser Is
only required to see that the court
has jurisdiction of the person and the
subject matter for his protection.
5. A guardian ad Item is only nee
essary where a minor has an interest
in the subject matter. The SuggeS-
ton that a guardian ad Item should
be appointed for the minor husband
of minor wife, the husband having
no interest, is idle.
g. Code section 2160 providing that
the clerk shall upon the filing Of a
caveat order the personal representa-
tive to suspend further proceedings,
cannot be invoked to attack the valid
ity OF a proceeding started after caVeat
was filed when such order was not
made.
Of
pending litigation in regard to title
Of land sold in a special proceeding
and the tendency. of the issue of
deyisavit vel non persons were re-
strained from bidding at such sale can
not be heard to set aside judgment.
but would only be competent in IN
separate action attacking the proceed
ing for fraud and designed to show
that the purchaser was cogniZant of
the facts and took unfair advantage
thereof
}. l.. Dayvis vs.. w. e. Tel. Co, appel
liant. Il. III. Busbee and Son; Small
and Mclean and MURRAY Allen for
appellant: j. ID. Grimes and w. Il.
Rodman, for appellee. Hoke, j.
Affirmed.
Where wife Of plaintiff took the
wrong train while EN- route tol
/ strange town from which she teie |
sraphed her husband of her where |
abouts and in explanation of her de- |
ay and such telegram, by reason of J
The defendants negligence was not |
delivered and plaintiff kept for over |
4 day in a state of anxiety regarding |
he whereabouts of his wife and small |
one of whom he, knew to be |
sick. the telegram being
:
Got left. Be there at 1880 o'clock to- |
Signed 3D."
Held: 1. That. Notwithstanding the |
act that the wording of the tele-
gram did not disclose the relation
ship between the sender and the adj
lressee, the testimony of the wife that
she event to the telegraph office, |
rave it to the operator, told him / |
lad been thrown over in Weldon, had
wo children with me, they were sick,
ny husband was to meet me ana
would be worried unless he got the
Message" constituted sufficient notice
would naturally follow as result OF
is misconduct.
2. This court having uniformly APP
,lied the law as in cases governing
preach of contract to the award of
lamageS in cases of mental anguish,
md not as in cases of fort, the adj
mission of testimony as to what the
wife and children had to eat Will
eft over and as to the fact that
hey had no money would have been
eversible error had such testimony
ot been afterwards specifically taken
rom the consideration of the jury
" the charge of the court
8. The statement by the court III
such testimony that
YOU will note that these last two in
tructions relate to recovery based
pon the idea of the suffering of the
wife or of the children or of their
nxiety and trouble that they may
ave had at Weldon. You will un
erstand that this action is not
rought by the wife nor by the chill
rem: it is brought by the husband;
nd therefore you are limited in this
ase to q consideration of the hus-
and and his suffering and mental
nxiety by reason of these circum-
the concluding words of
he Judge cannot be interpreted AS
Erecting the attention of the jury to
he facts just withdrawn as evidence
ut as meaning such circumstances"
s under the charge had been held
ertinent.
Y. T. Hughes & Co. appellant, VS..
PETER Tobacco Warehouse Co. r.
G SpruiII and w H. Ruffiu for an