Dupree v. Turner

• Decision Date: 18 February 1959
• Docket Number: No. 1,No. 37492,37492,1
• Citation: 108 S.E.2d 171,99 Ga.App. 332
• Parties: Lillian B. DUPREE v. O. L. TURNER
• Court: Georgia Court of Appeals

Page 171

108 S.E.2d 171

99 Ga.App. 332

Lillian B. DUPREE v. O. L. TURNER.

No. 37492.

Court of Appeals of Georgia, Division No. 1.

Feb. 18, 1959.

Rehearing Denied March 30, 1959.

Houston White, Beryl H. Weiner, Atlanta, for plaintiff in error.

Johnson, Hatcher & Meyerson, Henry M. Hatcher, Jr., Atlanta, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Judge.

1. Where, in a proceeding under the terms of Section 1 of the Act of the General Assembly of 1935 (Ga.L.1935, p. 381; Code, Ann. §§ 37-608 to 37-611), providing for the confirmation and approval of sales of realty, sold on foreclosures, without legal process, under power contained in a security deed, such power is exercised by the grantee, who is the purchaser at such sale, and who petitions the superior court of the county wherein the land lies, praying the issuance of a rule nisi directed to the grantor in the deed; and, where the court issues the rule nisi, but the record is silent as to service and return of such rule, but the court, after reciting in its judgment that 'after due and legal notice to the defendant and the defendant making no appearance,' approves and confirms the sale, it is error for such court to sustain demurrers to, and dismiss, the defendant's verified motion to set aside the judgment, filed during the same term at which the judgment confirming the sale was entered, wherein it is alleged (among other facts) that 'no directed notice by the judge' of the hearing was ever served upon her, that the rule nisi was never served upon her by anyone, that she did not acknowledge service of the rule, that she did not have any notice of the proceedings, nor consent to them, nor was any paper served upon her except a letter from counsel for the grantee, received by her through the mails fifteen days prior to the filing of the petition and twenty-three days prior to the hearing inviting her to be present at the hearing; and the trial court abused its discretion in holding that such letter constituted sufficient notice, and in sustaining the demurrers to, and dismissing, the motion to set aside the judgment confirming the sale. See in this connection Code (Ann.) § 110-709; Strickland v. Willingham, 49 Ga.App. 355, 175 S.E. 605; Weaver v. Webb, Galt & Kellogg, 3 Ga.App. 726, 60 S.E. 367; Gormley v. Watson, 48 Ga.App. 46, 171 S.E. 880; and cit.; Union Compress Co. v. A. Leffler & Son, 122 Ga. 640(1), 50 S.E. 483; Perry v. Fletcher, 46 Ga.App. 450, 167 S.E. 796; Plunkett v. Neal, 201 Ga. 752, 41 S.E.2d 157; Bell v. Hanks, 55 Ga. 274(3).

2. 'According to the common law rule, adhered to at the present time in most of the States, the presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive, and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent on the face of the record. Whenever the record of such a court is merely silent upon a particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done but that it was rightly done. So where the judgment contains recitals as to the jurisdictional facts these are deemed to import absolute verity unless contradicted by other portions of the record. Consequently such a judgment can not be collaterally attacked in the courts of the same State by showing facts aliunde the record, although such facts might be sufficient to impeach the judgment in a direct proceeding against it. The validity of a judgment when collaterally attacked must be tried by an inspection of...