The Lessee Of Wm. Griffith v. Wright

• Decision Date: 31 May 1855
• Docket Number: No. 17.,17.
• Citation: 18 Ga. 173
• Parties: The Lessee of Wm. Griffith and others, plaintiffs in error. vs. John G. Wright, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 173

The Lessee of Wm. Griffith and others, plaintiffs in error. vs. John G. Wright, defendant in error.

No. 17.

Supreme Court of the State of Georgia

MAY TERM, 1855.

Ejectment, in Oglethorpe Superior Court. Tried before Judge ANdREws, April Term, 1866.

This was an action by the heirs of George Griffith, against John G. Wright, for a part of a tract of land divided by the county line, between the Counties of Oglethorpe and Taliaferro, and upon which tract of land George Griffith lived prior to his death. The defendant set up title under a sale by one Glenn, as the administrator of George Griffith. The letters of administration were granted by the Ordinary of Taliaferro County, and did not recite that Griffith resided in that county at the time of his death. Counsel for the heirs of Griffith proposed to prove, that by an accurate survey of the county line, and by other evidence, that the residence of George Griffith, at the time of his death, was in Oglethorpe County; and hence, that the Ordinary Court of Taliaferro County had no jurisdiction; and the letters of administration granted were therefore void. The Court refused to admit the evidence, on the ground that the letters could not be thus attacked, collaterally, in this case. This is the error assigned.

Reese; Toombs, for plaintiffs in error.

Irvin & Barnett, for defendant in error.

By the Court.—Benning, J. delivering the opinion.

The fourth section of the Act of 1839, "to make it the duty of the Clerks of the Court of Ordinary" to preserve evidence, &c. is in the following words: " Sec. IV. In all cases hereafter, letters of administration shall only be granted by the Court of Ordinary of the county where the deceased resided at the time of his death, if a resident of this State."

Under this section, the Court of Ordinary of the county in which George Griffith resided at the time of his death, was the only Court of Ordinary in the State which had power to grant letters of administration on his estate. If, therefore, Taliaferro was not that county, the Court of Ordinary of Taliaferro had no power to grant the letters of administration on his estate, which it did grant; and the grant of such letters was "a mere nullity." (Towns, Gov. vs. Springer and others, 9 Ga. 130. Beverly McBride vs. Burke, do. 446.)

Was it the right of the plaintiffs to show, by such evidence as that which they offered, that George Griffith, at the time of his death, did not reside in the County of Taliaferro, but did reside in the County of Oglethorpe? This is the question.

The evidence offered by the plaintiffs, consisted not in the acts, recitals or proceedings of the Court of Ordinary of Taliaferro, but in other things. Nothing appeared on the face of any of the acts, recitals or proceedings of that Court to show where Griffith resided.

Now, if a want of jurisdiction in the Court is disclosed by something which is apparent on the face of the cause, there isno dispute, I believe, but that any body may, collaterally or otherwise, if need be, avail himself of that something, to have the judgment rendered in the cause considered a nullity. Case of the Marshalsea, (10 Coke, 168.) In such a case a prohibition would go, even after judgment. (Com. Dig. Prohibition D.)

But when the want of jurisdiction is not so disclosed, whether that which would disclose it may, in some proceeding not begun for the special purpose of annulling the judgment, be shown by extraneous evidence, is a question about which there is less of certainty.

One of the two answers to the House of Lords, given by the Judges in the Duchess of Kingston's case, was " that a...