McLarty ex rel. Welzer v. Raymond

North Dakota Supreme Court

McLarty ex rel. Welzer v. Raymond

172 N.W. 836, 42 N.D. 241, 1919 N.D. LEXIS 149

DecidedApril 29, 1919

StatusPublished

This text of 172 N.W. 836 (McLarty ex rel. Welzer v. Raymond) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McLarty ex rel. Welzer v. Raymond, 172 N.W. 836, 42 N.D. 241, 1919 N.D. LEXIS 149 (N.D. 1919).

Pincite

Opinions

Per Curiam.

This is an action for damages. The cause of action dates back to 1909. The real party in interest is non compos mentis. In the month of October, 1916, nearly a month prior to the institution of this action, the trial court, upon the application of the plaintiff, appointed a guardian ad litem. The action was instituted in November, 1916. A demurrer was interposed to the complaint upon four grounds; viz.

1. No legal capacity to sue.

2. Defect of parties plaintiff in that the incompetent person can prosecute his action only by a general guardian.

3. Facts insufficient to constitute a cause of action; and,

4. Several causes of action improperly united.

The trial court in March, 1918, sustained the demurrer, and from its order so doing the plaintiff has appealed.

The record does not show the existence of any general guardian for the incompetent. Consequently the court was authorized, under § 7401, Comp. Laws 1913, to appoint a guardian ad litem.

The complaint, however, fails to state a cause of action. It will serve no useful purpose to extend this opinion by an involved consideration of the allegations of this complaint. It is hard indeed to discover either a theory or a purpose from the viewpoint of the pleader. The gist of the action seems to be the false representations made by the defendant to this incompetent by reason of which he was induced to execute certain notes and a mortgage for $1,000 in order to be in a position to marry the sister-in-law of the defendant; and that the defendant, through wrongful connivance, secured the incarceration of the plaintiff in the hospital for the insane. The complaint grounds an action neither in false imprisonment nor upon fraud and deceit; even the old common-law action on the case cannot be predicated upon allegations of this complaint. In fact, the complaint shows no deprivation of property possessed by the incompetent. Possibly a cause of action may [244]*244exist in favor of the incompetent. This court is not disposed to forever bar tbe plaintiff from maintaining his cause of action, if one be has. Tbe order of tbe trial court is affirmed, with costs to tbe respondent, without prejudice to the plaintiff proceeding upon an application before tbe trial court to amend bis complaint either as to tbe party plaintiff or as to tbe cause of action, as be may deem proper.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

This is an action for damages. The cause of action dates back to 1909. The real party in interest is non compos mentis. In the month of October, 1916, nearly a month prior to the institution of this action, the trial court, upon the application of the plaintiff, appointed a guardian ad litem. The action was instituted in November, 1916. A demurrer was interposed to the complaint upon four grounds; viz.

1. No legal capacity to sue.

2. Defect of parties plaintiff in that the incompetent person can prosecute his action only by a general guardian.

3. Facts insufficient to constitute a cause of action; and,

4. Several causes of action improperly united.

The trial court in March, 1918, sustained the demurrer, and from its order so doing the plaintiff has appealed.

The record does not show the existence of any general guardian for the incompetent. Consequently the court was authorized, under § 7401, Comp. Laws 1913, to appoint a guardian ad litem.

The complaint, however, fails to state a cause of action. It will serve no useful purpose to extend this opinion by an involved consideration of the allegations of this complaint. It is hard indeed to discover either a theory or a purpose from the viewpoint of the pleader. The gist of the action seems to be the false representations made by the defendant to this incompetent by reason of which he was induced to execute certain notes and a mortgage for $1,000 in order to be in a position to marry the sister-in-law of the defendant; and that the defendant, through wrongful connivance, secured the incarceration of the plaintiff in the hospital for the insane. The complaint grounds an action neither in false imprisonment nor upon fraud and deceit; even the old common-law action on the case cannot be predicated upon allegations of this complaint. In fact, the complaint shows no deprivation of property possessed by the incompetent. Possibly a cause of action may [244]*244exist in favor of the incompetent. This court is not disposed to forever bar tbe plaintiff from maintaining his cause of action, if one be has. Tbe order of tbe trial court is affirmed, with costs to tbe respondent, without prejudice to the plaintiff proceeding upon an application before tbe trial court to amend bis complaint either as to tbe party plaintiff or as to tbe cause of action, as be may deem proper.

Cite This Page — Counsel Stack

Bluebook (online)

172 N.W. 836, 42 N.D. 241, 1919 N.D. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclarty-ex-rel-welzer-v-raymond-nd-1919.