McClure v. Donovan

WILSON, J.

The above-entitled matters are before the court on motions to dismiss the appeals.

Number 16154 is an appeal from a judgment annulling a marriage purporting to have been solemnized between Jefferson D. Caruthers and Laura Alpha Donovan. The action was brought on behalf of Mr. Caruthers by Martha McClure, his sister, upon the ground that at the time of the marriage he was wholly incompetent and incapable by reason of incompetence of contracting the marriage and continued to manifest a state of mind rendering him an incompetent person. It is further alleged that in the purported marriage the defendant took undue advantage of the mental condition and illness of Mr. Caruthers and was seeking to obtain his life savings and earnings.

Number 16172 is a purported appeal from a judgment and order appointing Louis A. Ghiotto as guardian of the person and estate of Mr. Caruthers, in which the court made a finding that for a long time prior to the filing of the petition for guardianship he was and is, by reason of old age, disease and weakness, incapable of properly managing and taking care of himself or his property.

The records of the two proceedings, including the affidavits upon which the motions to dismiss the appeals are based, show that the attorneys who appeared for Mrs. Donovan (or Caruthers) in the trial of the action for annulment of the marriage and who appear for her in this court on. the appeal from the judgment in that action, are the same attorneys who filed the purported notice of appeal from the order appointing the guardian. The affidavits also show that an action has been filed on behalf of Mr. Caruthers by his guardian to recover property conveyed by him to his purported wife.

Since the alleged incompetent is the plaintiff in the action

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to annul the marriage and in the action to recover the property, the attorneys plainly represent adverse interests when they attempt to appear for Mr. Caruthers on the appeal in the guardianship proceeding while they are at the same time representing his purported wife in the annulment proceeding. No counsel appeared for him at the hearing of the guardianship proceeding in the superior court.