Herrin v. George , 183 Ga. 77 ( 1936 )

Per Curiam.

This was a suit in equity by Herrin as guardian of J. M. Casey, an insane person, to set aside a consent decree rendered against Casey in a former suit in equity brought in his behalf by J. H. Casey as next friend before appointment of the guardian, for the purpose of setting aside a previous judgment against him in an action at law. In order to avoid the conclusiveness of the decree rendered in the former equity suit, it was alleged only that J. H. Casey, who purported to act as the next friend of J. M. Casey in that case, was incompetent to act in such capacity, because he “was a man who drank whiskey to excess and had drunk whiskey habitually for a number of years previous, and at the time that he was pretending to care for the interest and safeguard the welfare and interest of J. M. Casey he was wholly incapacitated to do so, for the reasons herein set out.” By an amendment it was alleged further that “at the time said equitable action was filed b3r said J. H. Casey as next friend . . the said Casey . . was non compos mentis and had no right or contractual capacity” to employ the attorney who instituted the action, and the attorney had no right to file the suit or appear therein as attorney. The court sustained a general demurrer and dismissed the petition as thus amended, and Herrin as guardian excepted.

1. Construing the allegations of the petition most strongly 'against the pleader, the averments in regard to the habitual inebriety of the next friend were insufficient to show that he .was incapacitated at all times or at the time of the decree to represent the plaintiff in such litigation. The same is true of the allegation that the next friend was non compos mentis at the time the suit was filed.

2. Furthermore, the equitable suit was not void; and in the absence of any averment to the contrary, it is presumed that the -court duly protected the interests of the 'plaintiff as an insane litigant and rendered a proper judgment.

3. The court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

All the Justices concur, except Bussell, O. J., and BecJc, P. J., who dissent.