Campbell v. Atlanta Coach Co

• Decision Date: 25 November 1938
• Docket Number: No. 27002.,27002.
• Citation: 200 S.E. 203,58 Ga.App. 824
• Parties: CAMPBELL. v. ATLANTA COACH CO.
• Court: Georgia Court of Appeals

58 Ga.App. 824

200 S.E. 203

CAMPBELL.

v.ATLANTA COACH CO.

No. 27002.

Court of Appeals of Georgia, Division No. 1.

Nov. 25, 1938.

Syllabus by Editorial Staff.

[COPYRIGHT MATERIAL OMITTED].

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Suit by Ruth Campbell, a minor, by Herbert Campbell as next friend, against the Atlanta Coach Company for personal injuries sustained by Ruth Campbell while riding as a passenger on a schoolbus owned and operated by the Atlanta Coach Company. To review a judgment for the defendant, the plaintiff brings error. The case was transferred to the Court of Appeals by the Supreme Court, 196 S.E. 769.

Affirmed.

R. B. Lambert, of Atlanta, for plaintiff in error.

Bryan, Middlebrooks & Carter, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

MacINTYRE, Judge.

Miss Ruth Campbell, a minor, by Herbert Campbell as next friend, brought suit against Atlanta Coach Company for personal injuries sustained by her while riding as a passenger on a school bus owned and operated by Atlanta Coach Company. Her guardian was not a party thereto. The defendant pleaded that Mrs. R. H. Campbell, who was the natural guardian of her daughter and who had been appointed guardian of her property compromised the matter for the ward as a doubtful claim, and had given her written receipt and release for the amount paid as a compromise.

1. The Code, § 49-219, declares: "Guardians are authorized to compromise all contested or doubtful claims for or against the wards they represent, to submit such matters to arbitration, to release a debtor if to the interest of the ward, and to appoint an attorney in fact, being responsible for the acts of said attorney." "Claims" as used in the Code, § 49-219, have a technical meaning and imply that a right is in dispute, including a demand arising out of tort. Maynard v. Cleveland, 76 Ga. 52, 70, 71; Bishop v. Big Sandy Lumber Co., 199 Ala. 463, 74 So. 931. The word "claim, " as therein used, embraces the assertion of a liability to the party making it to pay a sum of money. 1 Bouv. Law Diet, Rawle's Third Revision, 501. This impression of ours is strengthened when we note that the Code, § 49-221, uses only the word "debt, " its distinguishing characteristic being that "a fixed and specific amount is owing and no future valuation is required to settle it." 1 Bouv.Law Diet., Rawle's Third Revision, 787. " 'Claim' supposes debate, litigation the decision of a right." Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539, 575, 16 Pet. 539, 10 L.Ed. 1060. We think these two Code sections are for the purpose of distinguishing when a guardian can compromise a contested or doubtful "claim" of his ward, and when he can compromise a doubtful "debt" of his ward; for we note that the requirements for compromising a "claim" and for compromising a "debt" are different, and are set forth in two separate Code sections.

2. Under the common law, a guardian, in the absence of any statutory restrictions, has authority to compromise the claim existing in favor of his ward. 28 C.J. 1123, 1124; 12 R.C.L. 1130; Grievance Committee v. Ennis, 84 Conn. 594, 80 A. 767. The Code, § 49-219, which deals with compromising "claims" of the ward by the guardian, very cautiously refrains from restricting this authority relative to "contested or doubtful claims" as it existed under the common law. However, the Code § 49-221, deals with the question of when a guardian may compromise the "debt" of his ward, and unmistakably restricts the authority of the guardian to compromise his ward's debts by requiring that the ordinary shall first make an order directing the same.

3. Thus the rule, as it now exists with reference to the compromising of a "claim" under the Code, § 49-219, is that, when a compromise settlement of a doubtful "claim" for the ward is made by the guardian, such settlement is conclusive until it is set aside in a direct proceeding instituted for that purpose and the guardian is a necessary party to such proceeding. Malpass v. Graves, 111 Ga. 743, 36 S.E. 955; Holm Mixture Guano Co. v. Woolfolk, 148 Ga. 567, 97 S.E. 637; Redfern on Wills and Administration of Estates, 488. Of course a guardian has no right to make a fraudulent compromise as to the ward's property, and if he does so a proper proceeding may be instituted to set aside such fraudulentsettlement which is in the nature~of an obstacle in the way of any suit that might be brought for the recovery of damages on account of this personal injury. In the instant case, we have nothing but a regular tort suit, brought for damages for personal injury against the defendant, and the guardian is not even a party to the proceeding. The plaintiff's pleadings in no way ask for or authorize the setting aside of the compromise settlement.

4. Where the application is for the appointment of a guardian of a minor child under 14 years of age, other than the child of the applicant, it is necessary for citation to issue. Code, § 49-112. However, in order for the mother, the natural guardian, to also be appointed the guardian of her daughter's property, a citation is unnecessary (Beard v. Dean, 64 Ga. 259; New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 902, 157 S.E. 188), and the proceedings need not have necessarily been made returnable to the first Monday in December, 1933 (this being the first day of the December term of the court of ordinary), but her application may be filed at a later day during the term and heard by the ordinary on that day or set for a hearing on a subsequent day during the same term. Of course the judgment appointing the guardian must be at the regular term. Code § 24-2104.

5. Where it appears "in the record that the judgment from which an appeal was taken in this case was rendered on a day later than the first Monday in the month, the court of ordinary being a court of general jurisdiction, it will be presumed, in the absence of anything to the contrary, that the term of court was lawfully in session on the day judgment was rendered." Wright v. Clark, 139 Ga. 34 (1), 76 S.E. 565. "The rules prescribed by the statute regulating the mode of doing business by the Courts of Ordinary, ought always to be conformed to, and if they be not conformed to, the judgments are irregular, but they are not for that reason void. An irregular judgment cannot be attacked for that reason before another tribunal; to justify such an attack, the judgment must be void." Davie v. McDaniel, 47 Ga. 195,.208. Judgments of a court of ordinary of this State, in matters connected...