123 F.2d 370 (5th Cir. 1941), 10022, Park v. Park

Docket Nº:10022.
Citation:123 F.2d 370
Party Name:PARK et al. v. PARK et al.
Case Date:November 12, 1941
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 370

123 F.2d 370 (5th Cir. 1941)

PARK et al.


PARK et al.

No. 10022.

Circuit Court of Appeals, Fifth Circuit.

November 12, 1941

Page 371

Reuben R. Arnold and B. P. Gambrell, both of Atlanta, Ga., and L. P. Goodrich, of Griffin, Ga., for appellants.

Leonard Haas, of Atlanta, Ga., and Harvey J. Kennedy, of Barnesville, Ga., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was by appellees against their guardian and his sureties to recover $13,580,59, 1 notwithstanding releases given him by them after their majority, and his discharge by judgments of the Court of Ordinary. The claim was that the releases and the discharges were procured by fraud.

Urging that the suit was a collateral attack upon the judgment of a probate court, defendants moved to dismiss it for want of jurisdiction. For their defenses to the merits, they set up; the releases and the judgments of the Court of Ordinary; specifically and fully denied the charges of fraud and concealment; and pleaded that the estate had been fully and fairly administered; that full and fair settlement upon a full and fair accounting had been made; and that this was not the Court nor the occasion to demand another accounting.

The motion to dismiss was denied, D.C., 37 F.Supp. 185, and upon defendant's demand there was a trial to a jury, with a verdict and judgment for plaintiffs for $5,000. Defendants are here urging as reversible error, the denial of their motion to dismiss and the giving and refusal of charges, and insisting that the judgment

Page 372

may not stand because the verdict was without support in the evidence. No attempt is made in the briefs of the parties to draw any distinction between the right of plaintiffs to maintain this kind of suit against Park, and their right to maintain it against his sureties. We will therefore, since the judgment is to be reversed, not attempt to draw any, but will treat the suit as though it had been brought against Park alone, and the reversal will be without prejudice to the rights of the sureties if they are so minded to again present their motion to dismiss.

Treating the case as one brought against Park, we cannot agree that denial of the motion to dismiss for want of jurisdiction was error. Neither the ground, that the suit was one to administer the guardianship and therefore exclusively one for the Court of Ordinary, nor the ground that the suit was a collateral attack upon the judgment of the state court, was well taken. There are some broad allegations and prayers in the petition which give color to appellant's claim, that the suit is one for a full accounting and final settlement with the guardian and covers 'exactly the function of the Court of Ordinary', Robinson v. Georgia Bank & Trust Co., 5 Cir., 106 F.2d 944, 948, and that it is therefore not a suit maintainable in the federal court. Construed as a whole however, the pleading asks no more than was asked in Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Arrowsmith v. Gleason, 129 U.S. 86, 101, 9 S.Ct. 237, 32 L.Ed. 630; Edenborn v. Wigton, 5 Cir., 74 F.2d 374 and cases cited therein. In short, paraphrasing what we said in the Edenborn case, the suit is not a suit 'controlling, supervising or annulling proceedings of a state court, it is a personal suit in which the federal court scrutinizing the conduct of defendant...

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