Campbell v. Atlanta Coach Co.

• Decision Date: 25 November 1938
• Docket Number: 27002.
• Parties: CAMPBELL v. ATLANTA COACH CO.
• Court: Georgia Court of Appeals

200 S.E. 203

58 Ga.App. 824

CAMPBELL v. ATLANTA COACH CO.

No. 27002.

Court of Appeals of Georgia, First Division

November 25, 1938

Syllabus by Editorial Staff.

The word "claims" in statute authorizing guardians to compromise doubtful claims for or against their wards has a technical meaning and implies that a right is in dispute including a demand arising out of tort and embraces the assertion of a liability to the party making it to pay a sum of money. Code 1933, § 49-219.

The word "debt" in statute authorizing guardians to compromise debts in favor of their wards means that a fixed and specific amount is owing and that no future valuation is required to settle the amount. Code 1933, § 49-221.

At common law, a guardian, in the absence of any statutory restrictions, had authority to compromise a claim existing in favor of his ward.

Under statute, a guardian's compromise settlement of a doubtful claim for or against his ward is conclusive until set aside in a direct proceeding which is instituted for that purpose and to which the guardian is a "necessary party." Code 1933, § 49-219.

A guardian cannot make a fraudulent compromise as to his ward's property, and, if he does so, a proper proceeding can be instituted to set aside the fraudulent settlement which is in the nature of an obstacle in the way of any suit that might be brought for recovery of damages for personal injuries sustained by the ward. Code 1933, § 49-219.

A citation is necessary where application is made for appointment of guardian of minor under age 14 who is not a child of the applicant, but is unnecessary for appointment of mother as guardian of her child's property. Code 1933, § 49-112.

A mother's application to be appointed guardian of minor daughter's property need not be made returnable to the first day of the term of the court of ordinary, but 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, although the judgment appointing the guardian must be at the regular term. Code 1933, § 24-2104.

Where judgment was rendered by court of ordinary on a day later than the first Monday in the month, it would be presumed, in the absence of anything to the contrary, that the term of court was lawfully in session on the day the judgment was rendered, in view of the fact that the court of ordinary was a court of general jurisdiction.

The statutory rules regulating the mode of doing business by courts of ordinary should always be conformed to, and, if they are not conformed to, the judgments are irregular, but are not for that reason void, and an irregular judgment cannot be attacked for that reason before another tribunal but to justify such an attack the judgment must be void.

Judgments of a court of ordinary in matters connected with the administration of the estate of a minor are judgments of a court of general jurisdiction and the necessary jurisdictional facts need not be made to appear on the face of the record, and, if the face of the record negatives the existence of necessary jurisdictional facts, the judgment is void and can be attacked by anybody anywhere.

The court of ordinary was not required to give notice to any one of guardian's application for permission to compromise ward's claim for personal injuries, since the only legal party to the proceeding was the guardian who filed the application. Code 1933, §§ 24-2101, 24-2105, 49-219.

That proceeding to have mother appointed guardian of minor daughter's property was begun and concluded on the same day subsequent to the first day of the term of the court of ordinary, and that proceeding to compromise a doubtful claim of the daughter was filed and the compromise allowed on the same day would not authorize a finding in daughter's suit on such claim by next friend, that there was fraud of the guardian, assuming that mother's right to compromise the claim could be attacked in such suit. Code 1933, §§ 24-2101, 24-2105, 49-219.

In minor's suit by next friend for personal injuries, the granting of order by court of ordinary authorizing minor's guardian to compromise personal injury claim was not harmful to minor, whether granting of such an order was regular, irregular or void, if it were unnecessary for the guardian to apply to the ordinary for such order. Code 1933 § 49-219.

In minor's suit by next friend, minor could not recover for personal injuries sustained while riding as a passenger in a schoolbus owned and operated by the defendant, where minor's mother, who had been appointed guardian of minor's property and had compromised the matter as a doubtful claim, was not a party and the pleadings did not request the setting aside of the compromise settlement. Code 1933, § 49-219.

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.

In minor's suit by next friend, minor could not recover for personal injuries sustained while riding as a passenger in a schoolbus owned and operated by the defendant, where minor's mother, who had been appointed guardian of minor's property and had compromised the matter as a doubtful claim, was not a party and the pleadings did not request the setting aside of the compromise settlement. Code 1933, § 49-219.

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

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

Syllabus OPINION.

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. I Bouv.Law Dict., 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 Dict., 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...