Home Mixture Guano Co. v. Woolfolk
| Decision Date | 16 November 1918 |
| Docket Number | 948. |
| Citation | 97 S.E. 637,148 Ga. 567 |
| Parties | HOME MIXTURE GUANO CO. v. WOOLFOLK ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A plaintiff, who institutes a suit in a county other than the one in which he resides, submits himself, for all the purposes of the defense of that suit, to the jurisdiction of the courts of the county in which the suit is pending; and if such suit is pending in a court of limited jurisdiction which, for want of power, cannot afford full relief, the defendant, by petition in equity in the superior court of the county where the suit was instituted, may enjoin the prosecution of the suit, and set up and have adjudicated as to the nonresident plaintiff all matters included in such litigation.
(a) In such case, if relief is prayed as to matters not included in such litigation, the petition is subject to demurrer on the ground of want of jurisdiction, and may be dismissed if the objectionable prayer is not eliminated.
(b) If the relief prayed is confined to matters included in such litigation, the fact that some of the relief cannot be granted because of the absence of necessary parties defendant does not affect the jurisdiction of the court.
Where a plaintiff institutes a suit in a city court of a county other than the one in which he resides, and upon the death of the defendant causes his executor to be made a party to the action at law, the legatees under the will and sole parties to be affected by the suit (the legacies having been assented to by the executor) may, by a proper proceeding in the superior court of the county where the suit was instituted set up and have adjudicated, as to the nonresident plaintiff all matters necessary for their complete defense, if it be made to appear that the executor is insolvent, and that he refuses to defend the suit and is fraudulently colluding with the nonresident plaintiff.
While an executor has the authority to compromise contested or doubtful claims for or against the estate represented by him such authority is no warrant to the executor to enter into a collusive and fraudulent agreement, and thereby bind the estate represented by him. Such an agreement, if collusive and fraudulent, is open to attack in a proper proceeding by the legatees.
Error from Superior Court, Dougherty County; W. M. Harrell, Judge.
Suit by T. N. Woolfolk, Jr., and others, against the Home Mixture Guano Company. Special and general demurrer to petition overruled, and defendant excepts and brings error. Affirmed in part, and reversed in part.
Where plaintiff sues at law in city court of county other than that of his residence, and on defendant's death makes his executor a party, and executor has assented to legacies, the legatees, by proper proceeding in superior court of county, may have adjudicated all matters necessary for their complete defense, if executor is insolvent, refuses to defend, or fraudulently colludes with plaintiff.
T. N. Woolfolk, Sr., and Mrs. Clara J. Woolfolk, husband and wife, resided in Dougherty county. Mrs. Woolfolk inherited from her father, about the year 1892, an estate consisting principally of realty. In 1903 she executed to her husband a general power of attorney to manage her estate. She was then in feeble health. Before and at the time of the execution of the power of attorney, the husband was engaged in the sale of commercial fertilizer on his own account. The wife had nothing to do with his business. For seven years after the execution of the power of attorney the husband continued to manage the estate of the wife and also his private business. In January, 1910, his indebtedness to the Home Mixture Guano Company, a corporation of Muscogee county, Ga., amounted to approximately $2,000. The company learned that he had a power of attorney from his wife, and required him to transfer his account to his wife's name and to assume the $2,000 indebtedness as her attorney in fact. The wife knew nothing of this transaction. In June, 1910, the account with the company amounted to $16,897.62. The husband, as attorney in fact for the wife, executed and delivered to the company a note for this amount. This note was reduced by payments made by the husband to $11,584.02 by the latter part of January, 1912. On January 23, 1912, the company filed suit in the city court of Albany on this note against the wife. She answered the suit, denying that she had any knowledge of the transaction leading up to the signing of the note, and alleging that she had not ratified the same. She was in ill health, and the case was continued for more than a year. She died on April 8, 1913. Prior to her death she executed a will, in which she named her husband as her executor, and gave him power to manage and dispose of her estate without responsibility to any court. The will devised and bequeathed her entire estate to her children, T. N. Woolfolk, Jr., Mrs. E. F. Jackson, Mrs. John C. Cowart, and Miss Rosa Woolfolk. Nothing was devised to the husband. After he had qualified as executor he was made a party to the suit in the city court.
The case was continued from term to term, and finally, on December 11, 1916, the executor executed a compromise agreement to pay the plaintiff in that suit $4,500 in settlement of the claim, and undertook to secure the payment of the compromised amount by a deed to certain real estate belonging to the estate of the testatrix and specially devised to one of her children. In the same agreement he stipulated to confess judgment against the estate for the amount of the compromise in the event he failed to pay the same. This agreement was entered of record in the city court of Albany. He failed to pay the $4,500; and T. N. Woolfolk, Jr., son of the testatrix and devisee under the will, learned of this agreement prior to the February term, 1918, of the city court of Albany, and filed an equitable petition in the superior court of Dougherty county, setting out in substance the foregoing facts, and alleging that the agreement was the result of collusion and fraud, that the debt was the debt of the husband, and not of the wife, and that both the company and the executor were fully advised of all the facts of the case. The petition (in which the other devisees afterward joined) prayed that the superior court take jurisdiction of all the issues in the case in the city court; that the merits of the case be determined on the issues raised by the pleadings filed by the testatrix prior to her death; that the company be enjoined from taking judgment on said agreement; and that said agreement, especially the lien sought to be created thereby, be canceled. An amendment to the petition alleged, that the executor assented to the filing of the petition in this case; that the executor himself refused and failed to institute the necessary action to set aside the compromise agreement and stipulation to confess judgment; that the executor was insolvent, and had not given bond; and that the agreement made between the executor and the guano company was illegal, fraudulent, and void as against the legatees and devisees under the will, all of whom were made parties plaintiff in the case.
To the petition the defendant filed a demurrer in its nature both general and special. The principal grounds of demurrer were: (1) There is no equity in the bill, and the court has no jurisdiction of the person of the defendant. (2) Relief is sought, not involved in the action at law, a suit upon a note already compromised by the executor and representative of the estate and of the plaintiff. (3) The petition is filed by the alleged legatees under the will of Mrs. Clara J. Woolfolk, and it affirmatively appears that the legatees are seeking other relief than is germane to the action at law pending in the city court, and that there is a duly qualified representative of said estate. (4) The executor is a necessary party defendant to the suit to enjoin the action at law and to cancel the lien given by him to the defendant, as contained in the compromise agreement. (5) The charges of collusion and fraud, made in the petition, were insufficient. The court overruled the demurrer, and the defendant excepted.
Battle & Hollis, of Columbus, and Pope & Bennet, of Albany, for plaintiff in error.
Walters & Redfearn, of Albany, for defendants in error.
GEORGE, J. (after stating the facts as above).
The Constitution declares:
"Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." Civil Code, § 6540.
Before this provision was inserted in the Constitution of this state, this court, in analogy to the rule fixed for civil cases, required equity suits to be brought in a county where one of the defendants resided against whom substantial relief was prayed. See Gilbert v. Thomas, 3 Ga. 575; Rice v. Tarver, 4 Ga. 571; Carter v. Jordan, 15 Ga. 76; Jordan v. Jordan, 16 Ga. 446, 456; Lavender v. Thomas, 18 Ga. 668, 678; Anderson v. Sego, 19 Ga. 501; Kendrick v. Whitfield, 20 Ga. 379, 381; Lawson v. Cunningham, 21 Ga. 454; Smith v. Iverson, 22 Ga. 190; Dew v. Hamilton, 23 Ga. 414; Bowman v. Long, 27 Ga. 178; Key v. Robison, 29 Ga. 34; Carswell v. Macon Mfg. Co., 38 Ga. 403, 406. In the case last cited, referring to the provision as it appeared in the Constitution of 1868, it was said:
"We do not think the Constitution intends any more than this: To make a constitutional provision of what before rested in the decisions of the courts."
Section 5527 of the Code of 1910 declares:
"All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom a substantial relief is prayed, except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the...
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