Hadden v. Fuqua

• Decision Date: 10 September 1941
• Docket Number: 13821.
• Parties: HADDEN et al. v. FUQUA et al.
• Court: Georgia Supreme Court

16 S.E.2d 737

192 Ga. 668

HADDEN et al. v. FUQUA et al.

No. 13821.

Supreme Court of Georgia

September 10, 1941

Syllabus by the Court.

Where to a suit charging a devastavit against a guardian who does not reside in the county a plea to the jurisdiction is sustained, but the defendant procures of the court a judgment sustaining his general demurrer based upon the ground that no cause of action is alleged, the defendant thereby submits to the jurisdiction of the court, and the judgment sustaining the demurrer is valid and binding upon all parties. And where such a judgment is pleaded as a bar to a subsequent suit between the same parties and involving the same issues, it is error to dismiss the plea on demurrer. The second action does not avoid the former judgment by naming two additional defendants who it is alleged conspired with the guardian nor by charging that the defendants caused the dismissal by the Supreme Court of a writ of error to the former judgment by persuading the clerk of the superior court to delay transmitting the record in the case.

H W. and T. L. Fuqua, as executors of the will of B. T. Fuqua brought this action in Richmond superior court against A. O. Hadden, individually and as guardian of B. T. Fuqua, the Fidelity & Casualty Company of New York as surety on the guardian's bond, Lester F. Watson, and R. M. Daley.

The petition in substance alleges, that on May 25, 1933, B. T. Fuqua of Laurens County, Georgia, executed a will in which the plaintiffs were nominated as executors; that on March 1, 1936, B. T. Fuqua became mentally unsound and incompetent, and upon his application to the ordinary of Laurens County A. O. Hadden was appointed guardian of the property of B. T. Fuqua; that Hadden qualified as guardian and gave bond in the amount of $5,000, with Fidelity & Casualty Company of New York as surety; that as guardian A. O. Hadden took possession and control of all the real and personal property belonging to B. T. Fuqua and retained possession and control until the death of his ward on February 18, 1939; that at the April term, 1939, of the court of ordinary of Laurens County the will of B. T. Fuqua was probated in solemn form, and letters testamentary were issued to plaintiffs, who have duly qualified as executors of the will; that the plaintiffs have made demand upon the guardian, A. O. Hadden, for all moneys that came into his hands as such, and for an accounting as required by law; and that these demands have been refused, and the guardian has failed to make any settlement or accounting with the plaintiffs; that upon his appointment the guardian received in cash approximately $6,100 belonging to the estate of his ward; that during his guardianship he has received in cash from the sale of personal property and for rents and profits from a fifteen-horse farm belonging to his ward approximately $3,980; that since the death of his ward the guardian has continued to collect and to pay out moneys belonging to the estate, the amounts of which the plaintiffs for lack of information are unable to state, but which aggregate several hundred dollars; that the guardian during his trusteeship claims to have expended, for support and maintenance of the ward, $1,389; for continuing farm operations for 1936 pursuant to an order of the court of ordinary, $200; for sums expended for taxes on realty, for bond premiums, and court costs, $1,032; making a total of $2,621; that since his appointment as guardian Hadden and his attorneys, Lester F. Watson and R. M. Daley, have together wasted and misapplied the moneys coming into the hands of the guardian as aforesaid; that a just and true accounting will show the defendants are indebted to the plaintiffs in the approximate amount of $7,500; that Hadden in insolvent; that his surety is liable only for the amount stated in the bond, $5,000, and the defendants Watson and Delay are therefore necessary and indispensable parties defendant to this case; that notwithstanding the facts above alleged, the guardian, aided and assisted Watson and Delay, has applied for and is endeavoring to obtain his dismissal as guardian in the court of ordinary, in an effort to conceal and shield their liability and avoid payment of the money due the estate; that the guardian has never made any returns in the manner required by law, and he has no right to ask for dismissal until he had made an accounting to and with plaintiffs; that the court of ordinary is without jurisdiction to grant the equitable relief against the defendants to which the plaintiffs are entitled and for which they pray; and that no citation for settlement or accounting against the guardian has been filed in the court of ordinary. The prayers are that the defendants be enjoined from prosecuting further the application for the guardian's discharge in the court of ordinary; for a full accounting; for judgment against the defendants jointly for $5,000, and for an additional recovery of $2,500 against defendants Hadden, Watson, and Delay, and for any additional amount found due upon the accounting; for general relief; and for process.

On September 18, 1940, an amendment of the plaintiffs' petition was allowed and filed. After reciting that B. T. Fuqua was seventy-six years old when the guardian was appointed, but that his mind was alert and active, and that he had accumulated considerable wealth and was making substantial profits each year from farm operations, the amendment makes general allegations of collusion on the part of Hadden in procuring his appointment as guardian; and alleges that the estate was of the approximate value of $15,000, but that the guardian misrepresented this value to the court of ordinary, in order to avoid giving a proper bond. It then takes up a number of orders of the court of ordinary which purport to authorize various expenditures by the guardian, and alleges that such orders were the result of a conspiracy, were obtained by fraud, and were invalid. The amendment attacks the validity of an order of the superior court awarding a total sum of $700 as attorneys' fees payable by the guardian from his ward's estate, alleging that this judgment is void. It also attacks an order of the court of ordinary allowing extra compensation to the guardian, and avers that for the reasons set out in the petition and amendment the guardian has forfeited any right to commissions. The amendment sets forth that on June 8, 1939, the plaintiffs filed in the superior court of Johnson County a suit for an accounting against the defendants Hadden and Fidelity & Casualty Company, in which they prayed for injunction to restrain Hadden from proceeding with his petition for a discharge in the court of ordinary; that the defendant Hadden filed a plea to the jurisdiction and also demurred; that on July 29, 1939, judgment was entered in that court as follows: 'After hearing within plea, the same is sustained and said proceedings as to A. O. Hadden are dismissed, and injunction dissolved'; that on August 11, 1939, the plaintiffs presented a bill of exceptions to review the judgment; that the judge called in counsel for A. O. Hadden, and the question arose as to sustaining the demurrer of Hadden to give the Supreme Court jurisdiction; that the judge refused to act upon the demurrer, because the guardian had already been dismissed as a party; that counsel for defendants thereupon suggested that if plaintiffs would agree to a stipulation restricting the issues in the Supreme Court they would agree for the judge to sustain the demurrer; that thereupon judgment was rendered sustaining the demurrer, and another bill of exceptions was signed and certified by the judge; that the merits of the demurrer were never discussed by the court, and the court sustained the demurrer at the instance of counsel for A. O. Hadden, the defendant; that the bill of exceptions was filed with the clerk on August 11, 1939, and the costs incident to the appeal were paid to the clerk; that the defendants thereupon entered into a further conspiracy with the clerk to defraud the plaintiffs and to bring about a dismissal of the bill of exceptions; that the defendants, for a consideration unknown to plaintiffs, persuaded the clerk to hold up the record and deceive the plaintiffs into believing that the record had been transmitted to the Supreme Court; that the record was held up until December 18, 1939, when the plaintiffs with the aid of the judge persuaded the clerk to transmit the record; and that the bill of exceptions was thereafter dismissed by the Supreme Court, 190 Ga. 361, 9 S.E.2d 243, because of the delay in its transmission. The amendment contained prayers that the orders therein referred to be decreed null and void, and that the plaintiffs have general relief. The petition was further amended in immaterial respects, but for the purpose of elaborating allegations already made.

At the appearance term of the Richmond County suit, A. O. Hadden filed a plea of res judicata. This plea alleged that the matters involved in plaintiffs' suit had been adjudicated against petitioners in a proceeding to which petitioners and defendants were parties, being a suit by petitioners against this defendant and Fidelity & Casualty Company in the superior court of Johnson County, filed on June 8, 1939. Copies of the plaintiffs' petition in the Johnson County case, the defendants' demurrers thereto, the judgment sustaining the demurrer, and the remittitur of the Supreme Court dismissing the writ of error taken to the judgment on the demurrer were attached as exhibits to the plea of res adjudicata, and are in substance as follows: The petition headed 'State of Georgia, Johnson County. To the superior court of said county,' was in the name of T. L. and H. W. Fuqua, as exec...