In Re Cook

Supreme Court of North Carolina

In Re Cook

11 S.E.2d 142, 218 N.C. 384, 1940 N.C. LEXIS 163

Supreme Court of North Carolina·Decided October 30, 1940·Published·Cited by 8 cases

Opinion

Stacy, C. J.

The record discloses a proceeding in accordance with the provisions of Art. 3, ch. 103, of the Consolidated Statutes, which, in strictness, seems to be neither a civil action nor a special proceeding, notwithstanding C. S., 391. McIntosh on Procedure, 96.

It is not contemplated that there should be a jury trial of the issue in a matter of this kind. A justice of the peace may take the evidence and act in ease of emergency, when for any reason the clerk is not immediately available. C. S., 6195. No guardian is sought to be appointed to manage the property of the respondent, and hence the provisions of C. S., 2285, are not presently applicable.

*386 Moreover, there is no provision for an appeal from the order of the clerk to the Superior Court in a proceeding under this article. 'Whether certiorari would be available is not presented. In re Sylivant, 212 N. C., 343, 193 S. E., 422. The respondent may not call to his aid the provisions of C. S., 2302. There was evidence to support the order of the clerk.

Affirmed.

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Stacy, C. J.

The record discloses a proceeding in accordance with the provisions of Art. 3, ch. 103, of the Consolidated Statutes, which, in strictness, seems to be neither a civil action nor a special proceeding, notwithstanding C. S., 391. McIntosh on Procedure, 96.

It is not contemplated that there should be a jury trial of the issue in a matter of this kind. A justice of the peace may take the evidence and act in ease of emergency, when for any reason the clerk is not immediately available. C. S., 6195. No guardian is sought to be appointed to manage the property of the respondent, and hence the provisions of C. S., 2285, are not presently applicable.

*386 Moreover, there is no provision for an appeal from the order of the clerk to the Superior Court in a proceeding under this article. 'Whether certiorari would be available is not presented. In re Sylivant, 212 N. C., 343, 193 S. E., 422. The respondent may not call to his aid the provisions of C. S., 2302. There was evidence to support the order of the clerk.

Affirmed.

In Re Cook, 11 S.E.2d 142, 218 N.C. 384, 1940 N.C. LEXIS 163 (N.C. 1940).

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Opinion

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