
165 S.E.2d 490 (1969)
275 N.C. 90
Bernice T. HAGINS
v.
REDEVELOPMENT COMMISSION OF GREENSBORO, North Carolina, a body corporate.
No. 683.
Supreme Court of North Carolina.
January 31, 1969.
*495 Comer & Harrelson, Greensboro, for plaintiff appellant.
Cannon, Wolfe, Coggin & Taylor, Greensboro, for defendant appellee.
SHARP, Justice.
Plaintiff Hagins asserts (1) that she was deprived of due process when the court, after nonsuiting her four cases and advising her that she would have one year in which to reinstitute the actions, vacated the judgments of nonsuit and, without notice to her, appointed Franks as her next friend; and (2) that Franks' appointment was void and his purported settlement of her cases, although approved by the court, is not binding upon her.
Defendant's position is (1) that plaintiff was charged with notice of the orders vacating the judgments of nonsuit and appointing Franks as her next friend because they were entered during the term at which the cases were calendared for trial; (2) that the judge was not required to give plaintiff notice that he, ex mero motu, was contemplating the appointment of a next friend to conduct her litigation; (3) that G.S. § 1-64 empowered the judge to make the appointment upon any evidence or facts coming to his attention which convinced him she was not competent to manage her litigation; and (4) that the law authorized the next friend, with the court's approval, to settle plaintiff's litigation.
This crucial question is presented: Was plaintiff entitled to actual notice and an opportunity to be heard upon the issue of her mental competency before the judge was empowered to appoint a next friend to take charge of her litigation?
If the answer to the foregoing question is YES, the fact that the order appointing the next friend was made at term is irrelevant. However, at the outset, we deem it desirable to dispose of defendant's first contention. In doing so we note the two well-established rules of practice and procedure upon which defendant relies: (1) During a term of court all judgments and orders are in fieri, and, except for those entered by consent, may be opened, modified, or vacated by the court upon its own motion. Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791; Hoke v. Atlantic Greyhound Corporation, 227 N.C. 374, 42 S.E.2d 407; 5 N.C. Index 2d, Judgment § 6 (1968). (2) Unless actual notice of a particular motion is required by the constitution or statute, parties to an action are fixed with notice of all motions or orders made during the term of court at which the cause is regularly calendared for trial. Hardware Dealers Mutual Fire Insurance Co. v. Sheek, 272 N.C. 484, 158 S.E.2d 635; Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784; Collins v. North Carolina Highway Commission, etc., 237 N.C. 277, 74 S.E.2d 709; Harris v. Board of Education, 217 N.C. 281, 7 S.E.2d 538. This rule with reference to constructive notice, however, bends to embrace common sense and fundamental fairness. For instance, in Long v. Cole, 74 N.C. 267, an order made at term was subsequently set aside, "the order being made at midnight, when the plaintiff was absent, and did not know, and had no reason to believe that the Court was in session, and his counsel not being able to attend. * * *" Id. at 269. See also Sircey v. Hans Rees, Sons, 155 N.C. 296, 71 S.E. 310.
Under Rule (1) noted above, during the term at which he had entered the judgments of nonsuit, Judge Crissman had the authority, upon his own motion and without giving notice, to vacate the nonsuits and to restore the cases to the docket. See Collins v. North Carolina Highway Commission, etc., supra 237 N.C. at 282, 74 S.E.2d at 714. Hagins, however, *496 was entitled to immediate official notice that the cases had been reinstated. In the absence of such notice she was not charged with knowledge of any further proceedings in the cases. Between the time the actions were nonsuited and reinstated they were no longer pending, Burton v. City of Reidsville, 243 N.C. 405, 90 S.E.2d 700, and plaintiff was not required to maintain a constant vigil until the court adjourned for the term lest the judgments of nonsuit be vacated without notice to her. As Ervin, J., pointed out in Collins v. North Carolina Highway Commission, etc., supra, if the law "is to be a practical instrument for the administration of justice," it cannot "require parties to abandon their ordinary callings, and dance `continuous or perpetual attendance' on a court" simply because they have a case pending, Id. 237 N.C. at 281, 74 S.E.2d at 713a fortiori, if the case has been terminated by a judgment of nonsuit and is no longer pending.
Preliminary to a consideration of the question presented, we correlate the facts: Hagins is an adult. She denies that she is incompetent. She has never been committed to a mental hospital. She has never been adjudged insane in any civil or criminal action nor has she been adjudged incompetent from want of understanding to manage her affairs in a proceeding under G.S. § 35-2. She is not an inebriate. All the evidence tends to show that if she is mentally disordered or lacks mental capacity, her want of understanding is confined to one subjecther land and Commission's power to condemn it. On this subject, her former attorneys declare that she is "totally irrational" and "is so obsessed with the repossession of her condemned land" that she has "neither the willingness nor the capacity to understand" and manage her claims for damages; as to all other matters, she is "mentally aware and alert."
We next consider the applicable statutes. G.S. § 1-64 provides in pertinent part: "In actions and special proceedings when any of the parties plaintiff are infants, idiots, lunatics, or persons non compos mentis * * * they must appear by their general or testamentary guardian, if they have any within the State; but * * * if there is no such guardian, then said persons may appear by their next friend. * * *" G.S. § 1-65 authorizes the court to appoint a guardian ad litem for any defendant who is an infant, idiot, lunatic, or person non compos mentis and without a general guardian.
The only stated procedure for the appointment of a next friend appears in Superior Court Rule 16, "Next FriendHow Appointed: In all cases where it is proposed that infants shall sue by their next friend, the court shall appoint such next friend, upon the written application of a reputable, disinterested person closely connected with such infant; but if such person will not apply, then, upon the like application of some reputable citizen; and the court shall make such appointment only after due inquiry as to the fitness of the person to be appointed." N.C.Gen.Stat. Vol. 4A, p. 204 (1955).
Chapter 35, Article 2, of the N. C. General Statutes provides for guardianship and management of the estates of incompetents. In behalf of a person deemed "a mental defective, inebriate, or mentally disordered, or incompetent from want of understanding to manage his own affairs," G.S. § 35-2 authorizes any person to file with the Clerk of the Superior Court of the county in which the "supposed mentally disordered person" resides a duly verified petition setting forth the facts. Thereafter, "upon notice to the supposed mental defective," a jury of twelve inquires into the mental state of the alleged incompetent. If the jury finds him "to be a mental defective," the Clerk proceeds to appoint a guardian for him.
G.S. § 35-2.1 authorizes the Clerk to appoint a guardian or trustee for any person whom a jury, in either a criminal or a civil case, has found to be insane or incompetent to conduct business. G.S. § 35-3 empowers *497 the Clerk to appoint a guardian for any "idiot, lunatic, or insane person," confined in a State-supervised hospital for the insane upon the certificate of its superintendent declaring such person "to be of insane mind and memory or mentally retarded." However, before any person can be committed to a mental hospital, over his or his family's objection, G.S. § 122-58 declares that he must be given a hearing as provided in G.S. § 122-63.
From the foregoing statutes, it is apparent that the jurisdictional facts which would authorize the Clerk of the Superior Court to appoint a general guardian or trustee for plaintiff do not exist. What facts will authorize the judge to appoint a next friend?
In Orr v. Beachboard, 199 N.C. 276, 154 S.E. 311, after the defendant had filed answer, he was adjudged insane and committed to the State Hospital. Therein he recovered his sanity and was officially discharged from the hospital as cured. Approximately one month thereafter the court appointed a guardian ad litem for him under C.S. 451 (now G.S. § 1-65). In holding the appointment of the guardian ad litem void and the acts not binding upon the defendant, this Court said: "C.S., 451, empowers the court to appoint a guardian ad litem for infants, idiots, lunatics, or persons non compos mentis. * * * [A]t the time the guardian ad litem was appointed the defendant did not fall within the classification provided in the statute, and there was no authority or warrant of law for such appointment." Id. at 278, 154 S.E. at 312. Although technically a next friend represents a plaintiff and a guardian ad litem represents a defendant, we note that there is no substantial difference between the two. 44 C.J.S. Insane Persons § 140 (1945). The class of persons for whom next friends and guardians ad litem may be appointed are the same. G.S. §§ 1-64 and 1-65.
The effect of Orr v. Beachboard is that an adult plaintiff who is not an idiot or lunatic must be non compos mentis before the court has jurisdiction to appoint a next friend for him. How then must the incompetency of a party-litigant be established in order to meet constitutional requirements of due process?
Neither G.S. § 1-64 nor Superior Court Rule 16 contains any provision for notice to the party for whom it is suggested that a next friend be appointed. Furthermore, no procedure is specified for adjudicating a dispute over a party's infancy or his competency to conduct his litigation. Perhaps the explanation for these omissions is (1) the fact of infancy is rarely disputed and, if it is, age can ordinarily be established by an official record, and (2) a person non compos mentis who owns property will ordinarily be represented by a general guardian. Neither a next friend nor a guardian ad litem has authority to receive money or administer the litigant's property. His powers are coterminous with the beginning and end of the litigation in which he is appointed. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126.
Notwithstanding the silence of a statute, "notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard * * *." 60 C.J.S. Motions and Orders § 15 (1949). "[F]rom the earliest times the common law and the course of the legislation in common-law states has guarded sedulously the right of persons accused of incompetency of any kind to traverse the inquisition or other proceeding in the nature of one de lunatico inquirendo." In re Haynes' Will, 82 Misc. 228, 143 N.Y.S. 570, 572 (1913). See also Abrons v. Abrons, 24 A.D.2d 970, 265 N.Y.S.2d 381 (1965). It is clear therefore that when a party's lack of mental capacity is asserted and deniedand he has not previously been adjudicated incompetent to manage his affairshe is entitled to notice and an opportunity to be heard before the judge can appoint either a next friend or a *498 guardian ad litem for him. See National Surety Corp. v. Sharpe, 232 N.C. 98, 104, 59 S.E.2d 593, 597; McMillan v. Robeson County, 262 N.C. 413, 417, 137 S.E.2d 105, 108; Annot., 23 A.L.R. 594 (1923).
The right to recover damages for injury to one's property is no less a property right than the right to sell or use the property which was damaged. Normally, a litigant has a fundamental right to select the attorney who will represent him in his lawsuit, to conduct his litigation according to his own judgment and inclination, andif the case is to be compromisedto have it settled upon terms which are satisfactory to him. If this right is taken from him upon a factual finding which he disputes, fundamental fairness and the constitutional requirements of due process require that he be given an opportunity to defend and be heard. Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564 (1952). Accord, Borough of East Paterson v. Karkus, 136 N.J.Eq. 286, 41 A.2d 332 (1945); 44 C.J.S. Insane Persons § 143b, p. 308 (1945). "Where the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and given an opportunity to test, explain, or rebut it." In re Custody of Gupton, 238 N.C. 303, 304, 77 S.E.2d 716, 717-718; In re Wilson, 257 N.C. 593, 126 S.E.2d 489; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717.
It follows, therefore, that a person for whom a next friend or guardian ad litem is proposed is entitled to notice as in case of an inquisition of lunacy under G.S. § 35-2. This statute does not specify the time but, by analogy to G.S. § 1-581, ten days' notice would be appropriate unless the court, for good cause, should prescribe a shorter period. If, at the time appointed for the hearing, the party does not deny the allegation that he is incompetent, and the judge is satisfied that the application is made in good faith and that the party is non compos mentis, the judge may proceed to appoint a next friend to act for him. If, however, he asserts his competency, he is entitled to have the issue determined as provided in G.S. § 35-2. See Graham v. Graham, supra; Borough of East Paterson v. Karkus, supra; Kalanianaole v. Liliuokalani, 23 Haw. 457 (1916).
Plaintiff Hagins has had neither notice that her competency to manage her affairs was challenged nor an opportunity to be heard on the issue. Consequently, the order appointing Franks as her next friend was void and his settlements of her actions, notwithstanding they were approved by the court, are not binding upon her.
The cases of Moore v. Lewis, 250 N.C. 77, 108 S.E.2d 26; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268; Smith v. Smith, 106 N.C. 498, 11 S.E. 188; and Tate v. Mott, 96 N.C. 19, 2 S.E. 176, cited by defendant as authority for its contention that an inquisition to determine sanity was not a condition precedent to the appointment of a next friend for Hagins, involve factual situations not comparable to those we have considered. The holdings do not conflict with decision here.
In Moore v. Lewis, supra (a proceeding for partition), a guardian ad litem had been appointed for Lewis upon the affidavit of a disinterested person. Notwithstanding, Lewis employed counsel of his own choosing and filed an answer. Thereafter he defended the action in his own name, and the guardian ad litem took no further part in the proceedings. Upon appeal Lewis contended, inter alia, that the order appointing a guardian ad litem for him was invalid and rendered all subsequent proceedings void. This Court, while specifically recognizing the right of an alleged incompetent who objected to the appointment of a guardian ad litem to be heard with respect to his need for one, held that the failure of the court, ex mero motu, to *499 enter an order vacating the appointment was immaterial since the defendant, and not the guardian ad litem had actually defended the case. In Abbott v. Hancock, supra, the attack upon the appointment of a next friend for the plaintiff was made by the defendant whose demurrer admitted that the plaintiff was insane and confined in an asylum. In Smith v. Smith, supra, the plaintiff himself did not contest the appointment of his next friend, and Tate v. Mott, supra, involved only minors.
Situations comparable to the one presented by the instant case will not often arise. Upon the facts of this case we hold that an inquisition must be held before the court can appoint a next friend for plaintiff Hagins. However, an inquisition is not always a condition precedent for the appointment of a next friend or a guardian ad litem. In an emergency, when it is necessary, pendente lite, to safeguard the property of a person non compos mentis whose incompetency has not been adjudicated, the protection of the court may be invoked in his behalf by one acting as next friend. The reasons for allowing this procedure are well stated by Sir G. Jessel, M.R., in Jones v. Lloyd, 18 L.R.Eq. 268 (1874): "If this were not the law, anybody might at his will and pleasure commit waste on a lunatic's property or do damage or serious injury and annoyance to him or his property, without there being any remedy whatever. * * * [E]verybody knows it takes a considerable time to make a man a lunatic by inquisition, and his family sometimes hesitate about making him a lunatic, or hope for his recovery, and take care of him in the meantime without applying for a commission in lunacy. Is it to be tolerated that any person can injure him or his property without there being any power in any Court of justice to restrain such injury? Is it to be said that a man may cut down trees on the property of a person in this unfortunate state, and that because no effort of his can be made, no member of his family can file a bill in his name as a next friend, to prevent that injury? Is it to be allowed that a man may make away with the share of a lunatic in a partnership business, or take away the trust property in which he is interested, without this Court being able to extend its protection to him by granting an injunction at the suit of the lunatic by a next friend, because he is not found so by inquisition? I take it those propositions, when stated, really furnish a complete answer to the suggestion that he cannot maintain such a suit." Id. at 275. See Smith v. Smith, supra, 106 N.C. at 503, 11 S.E. at 189, where a portion of the above quotation appears.
Obviously, however, it is ordinarily desirable that an incompetent's litigation should be conducted by a general guardian who, being in control of all his ward's affairs, can relate the effect of the litigation to the incompetent's entire estate.
We, of course, express no opinion as to whether plaintiff is incompetent to manage her litigation. However, an application for the appointment of a next friend or a general guardian may yet be made for her. Therefore, in view of the assertion that plaintiff's want of understanding is confined to only one subjecther land, which Commission has condemnedwe deem it appropriate to consider when a person is non compos mentis within the meaning of G.S. § 1-64 and G.S. § 35-2. While there are varying degrees of mental inadequacy, the law will not (and should not) deprive a person of the control of his lawsuit or his property unless he is "incompetent from want of understanding to manage his own affairs." This is the criterion fixed by G.S. § 35-2, and we understand the word affairs to encompass a person's entire property and businessnot just one transaction or one piece of property to which he may have a unique attachment.
Incompetency to administer one's property "obviously depends upon the general frame and habit of mind, and not *500 upon specific actions, such as may be reflected by eccentricities, prejudices, or the holding of particular beliefs." 29 Am.Jur. Insane Persons § 7 (1960). Eccentricity, like profligacy, may coexist with the ability to manage one's property. Likewise, to authorize the appointment of next friend or guardian ad litem, it is not enough to show that another might manage a man's property more wisely or efficiently than he himself. Annot., 9 A.L.R.3d 774 (1966).
Many a man has prosecuted a lawsuit to his detriment or ruin, his ordinary caution and good judgment warped by prejudice, spite, or a stubborn purpose to vindicate "the principle of the thing." His attorneys and the court may have been entirely convinced that he was blindly and contumaciously refusing to settle his case upon terms which were obviously advantageous to himand they may have been right. Yet "no man shall be interfered with in his personal or property rights by the government, under the exercise of its parental authority, until the actual and positive necessity therefor is shown to exist." Schick v. Stuhr, 120 Iowa 396, 398, 94 N.W. 915, 916 (1903). It is one of the incidents of the cherished right of private property that ordinarily an individual may expend his property in fighting a lost cause or for any legal purpose whatever.
We have found no completely satisfactory definition of the phrase "incompetent from want of understanding to manage his own affairs." Furthermore, we do not believe it is possible to frame a definition which will include every aberration which might produce the incompetency to which reference is made. The facts in every case will be different and competency or incompetency will depend upon the individual's "general frame and habit of mind." As pointed out in re Anderson, 132 N.C. 243, 43 S.E. 649, mere weakness of mind will not be sufficient to put a person among those who are incompetent to manage their own affairs. At the time Anderson was decided The Code § 1670 (now, as amended, G.S. § 35-2) applied to "an idiot, inebriate, or lunatic, or incompetent from want of understanding to manage his own affairs." In 1945, the legislature deleted the words "idiot" and "lunatic" from the statute and substituted therefor "mental defective" and "mentally disordered" respectively. S.L.1945 Ch. 952. Therefore, the statement in Anderson that the fourth class of persons listed in The Code § 1670 were "embraced under the head of lunatics" and that "their want of understanding, in order to render them incompetent to manage their own affairs, must be complete" is no longer correct.
Under G.S. § 35-2, as presently written, if a person's mental condition is such that he is incapable of transacting the ordinary business involved in taking care of his property, if he is incapable of exercising rational judgment and weighing the consequences of his acts upon himself, his family, his property and estate, he is incompetent to manage his affairs. On the other hand, if he understands what is necessarily required for the management of his ordinary business affairs and is able to perform those acts with reasonable continuity, if he comprehends the effect of what he does, and can exercise his own will, he is not lacking in understanding within the meaning of the law, and he cannot be deprived of the control of his litigation or property. See Annot., 9 A.L.R.3d 774 (1966); Schick v. Stuhr, supra.
For the errors specified herein, the decision of the Court of Appeals is reversed, and the cause is remanded to that Court with the direction that it vacate the judgment of the Superior Court from which plaintiff appealed and remand the case to that court for such further proceedings, consistent with the legal principles herein enunciated, as may be initiated.
Error and remanded.
