Burgess v. Burgess

Decision Date11 January 1954
Docket NumberNo. 18410,18410
Citation210 Ga. 380,80 S.E.2d 280
PartiesBURGESS v. BURGESS.
CourtGeorgia Supreme Court

Syllabus by the Court.

The ruling of the court below overruling the general demurrer to the petition was error.

Laverne Grace Burgess filed her petition, against Louise S. Burgess and Paul Webb as Solicitor General of Fulton County, for a declaratory judgment, and alleged in substance, so far as is here necessary to be stated as follows: that petitioner married Vincent Lyle Burgess on September 5, 1942, he then being in the United States Army; that on March 25, 1944, petitioner gave birth to a son; that on September 3, 1947, there was filed in the Superior Court of Fulton County, Georgia, by Vincent Lyle Burgess a petition for divorce from petitioner on the ground of desertion; that service was perfected by publication; that a decree of total divorce was obtained in said proceedings on March 4, 1948; that in October, 1950, petitioner was notified that Vincent Lyle Burgess had been killed in action; that in February, 1951, the Veterans Administration notified petitioner that Vincent Lyle Burgess was survived by Mrs. Louise S. Burgess, his purported wife, and in July, 1951, notified petitioner that her husband had obtained a divorce from her on March 4, 1948; that she was denied a widow's pension because of the divorce decree; and that prior to this notice, she had no knowledge or notice concerning the divorce proceedings.

It was further alleged that the allegations contained in the petition for divorce were false in the following particulars: that it was alleged that the separation occurred in January, 1943, when petitioner lived with her husband until February, 1944; that Vincent Lyle Burgess had not been a resident of Georgia for twelve months next preceding the filing of the petition for divorce; that petitioner never deserted her husband; that it was alleged that there were no children, when there was a son; that petitioner's address was given as 'General Delivery, Los Angeles, California,' when her husband knew her correct street address.

The specific prayers for relief were: 'That the decree entered by this court on the third day of March, 1944, in case No. A-2219 be set aside'; and 'That the court declare who is the lawful widow of the deceased, Vincent Burgess'. There were additional prayers for general relief.

General and special demurrers were filed to the petition by Louise S. Burgess. All the demurrers were overruled. The exception here is to this judgment.

Frank W. Brandon, Margaret Hopkins, Atlanta, for plaintiff in error.

William L. Moore, Atlanta, for defendant in error.

WYATT, Presiding Justice.

1. 'The question of whether the action would lie against the defendants as heirs at law of the agent who was the grantee named in the deed was jurisdictional, and, being so, may be raised by general demurrer complaining that the petition fails to allege a cause of action for the relief sought.' Coleman v. Thomasson, 160 Ga. 81, 127 S.E. 129, 131.

'The absence of jurisdiction, appearing on the face of a petition, may be raised by general demurrer complaining that the petition fails to allege a cause of action for the relief sought.' Mullally v. Mullally, 199 Ga. 708(2), 35 S.E.2d 199, 200.

'The legal representative is a necessary party to proceedings to set aside a judgment in favor of the deceased.' Grier v. Jones, 54 Ga. 154, 155.

In the instant case, the petition is brought by the alleged wife of the deceased to set aside a judgment granting to the deceased a divorce from the petitioner. The suit is brought against a woman alleged to be the purported widow of the deceased and the Solicitor-General of Fulton County. Neither of these parties is the legal representative of the estate of the deceased. This is a fatal defect, and the fact that the petition is sought to be brought under the provisions of the Declaratory Judgments Act, Ga.Code Ann. § 110-1101 et seq., would make no difference. In any proceeding of any kind, the...

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14 cases
  • Wilder v. Jefferson Ins. Co. of New York, A01A1410.
    • United States
    • Georgia Court of Appeals
    • 19 October 2001
    ...to rights, status, and other legal relations before liability becomes fixed by act or omission. OCGA § 9-4-1; Burgess v. Burgess, 210 Ga. 380, 382-383(2), 80 S.E.2d 280 (1954); see also Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416 (1956). When a party has already acted, fixing rights, and ......
  • Gardei v. Conway
    • United States
    • Georgia Supreme Court
    • 1 February 2022
    ...principles of law[.]" Bingham v. Citizens of Southern Nat. Bank , 205 Ga. 285, 288, 53 S.E.2d 228 (1949). Accord Burgess v. Burgess , 210 Ga. 380, 383 (2), 80 S.E.2d 280 (1954) (quoting Bingham ); Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Assn., Inc. , 306 Ga. App. 794......
  • Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors
    • United States
    • Georgia Court of Appeals
    • 22 August 1997
    ...and other legal relations; and this chapter is to be liberally construed and administered." OCGA § 9-4-1; Burgess v. Burgess, 210 Ga. 380, 382-383 (2), 80 S.E.2d 280 (1954); Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 315(4), 66 S.E.2d 726 (1951); City of Brunswick v. A......
  • Merch. Law Firm, P.C. v. Emerson
    • United States
    • Georgia Supreme Court
    • 30 May 2017
    ...(2010) (petitioner cannot use mandamus or declaratory judgment to relitigate and overturn a prior judgment); Burgess v. Burgess, 210 Ga. 380, 382-383 (2), 80 S.E.2d 280 (1954) (declaratory relief unavailable to petitioner seeking to challenge and set aside divorce decree). Because all of th......
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