Bingham v. Citizens & Southern Nat. Bank

• Decision Date: 11 April 1949
• Docket Number: 16499.
• Citation: 53 S.E.2d 228,205 Ga. 285
• Court: Georgia Supreme Court
• Parties: BINGHAM v. CITIZENS & SOUTHERN NAT. BANK et al.

53 S.E.2d 228

205 Ga. 285

BINGHAM v. CITIZENS & SOUTHERN NAT. BANK et al.

No. 16499.

Supreme Court of Georgia

April 11, 1949

Rehearing Denied May 12, 1949.

Syllabus by the Court.

The petition in this case shows two judgments by a court of competent jurisdiction, construing the will of the deceased and decreeing the rights of the petitioner under the will adversely to the contentions made by him in this case. He does not seek to have these judgments vacated or set aside and the allegations of his petition do not sustain his contention that they are nullities. The trial court properly sustained the demurrers to the petition.

Pierce Bros., Benj. E. Pierce, Augusta, for plaintiff in error.

Fulcher & Fulcher, Augusta, for defendants in error.

HEAD Justice.

Giovanni Gregorini Bingham brought a petition for a declaratory judgment, against trustees under the will of Henry B. King in which he contended that there is a controversy between him and the trustees as to the nature of the estate devised to him by the testator, the trustees contending that he has an estate for life, and the petitioner contending that he had a fee-simple title. The petition as amended, with exhibits, shows two former proceedings in the Superior Court of Richmond County, adjudicating, among other things, the nature of the estate devised to Bingham under the will of Henry B. King. Bingham states that the first proceeding was not binding on him because he 'was not properly served.' He alleges that the second proceeding is void because the petition was brought by trustees for the purpose of obtaining a construction of a will, which was in the nature of a petition for a declaratory judgment, and not maintainable by the trustees at that time (1938), prior to the enactment of the Declaratory Judgments Act. The only prayer for relief is that the court enter a declaratory judgment or decree determining the rights of the petitioner in the premises. The trial court sustained general demurrers to the petition, and the exception here is to that judgment.

By an examination of the exhibits attached to his petition it appears that the first proceeding which adjudicated the rights of Bingham was brought by the executors of the estate of the testator, and the decree of the court recites that service was perfected on all of the defendants. The executors alleged that Bingham resided at 32 via Barberia, Bologna, Italy. Process on the petition of the executors was duly affixed on January 5, 1933, returnable to the March term, 1933, of Richmond Superior Court. An order for service by publication on non-resident defendants was entered on January 7, 1933, and the citation for publication was issued on the same date. The certificate of the clerk shows that a copy of the newspaper containing the published notice (to be served on non-resident defendants) was mailed to Bingham on January 12, 1933, to Bologna, Italy.

Counsel for Bingham apparently rely upon the case of Stiles v. Stiles, 183 Ga. 199, 187 S.E. 870, to support their contention that he 'was not properly served', and that the former judgment is therefor void. In the Stiles case, which was a divorce action, it appears that the plaintiff in the divorce proceeding had sworn that the defendant's address was Long Beach, California, but the notice was mailed to Seattle, Washington, and was not mailed within the time provided by law. This court pointed out that these facts were not in dispute, and held that the divorce proceedings were void. The Stiles case is not in point on its facts with the present case.

In this case it is not contended that the address of Bingham as stated by the executors in their petition for a construction of the will was incorrect. The citation was mailed by the clerk more than six weeks prior to the time the case was to be called for trial. The clerk's certificate shows that the citation was mailed to the city and country where Bingham was alleged to reside. Bingham does not allege that he did not, in fact, receive the citation, nor does he allege that he was not served. He alleges that he 'was not properly served,' and bases this contention on the failure of the clerk to include in his certificate the street address as shown in the petition of the executors.

On general demurrer the plaintiff's petition must be construed most strongly against him, and...