Howell v. Howell

• Decision Date: 16 September 1939
• Docket Number: 12971.
• Citation: 4 S.E.2d 835,188 Ga. 803
• Parties: HOWELL v. HOWELL et al.
• Court: Georgia Supreme Court

4 S.E.2d 835

188 Ga. 803

HOWELL v. HOWELL et al.

No. 12971.

Supreme Court of Georgia

September 16, 1939

Syllabus by the Court.

A judgment rendered with consent of counsel is binding on the client unless such consent was in violation of express directions given by the client to the attorney, and known to the adverse party or his attorney, or unless there was otherwise fraud and collusion on the part of counsel so consenting, participated in by the adverse party or his attorney.

Charley C. Howell and his brothers and sisters, the children and heirs at law of E. W. Howell, deceased, filed at the January term, 1939, of the court of ordinary of Gordon County their caveat to the application of Ellen Howell, the widow of E. W Howell, for a year's support, and prayed that the same be denied, and that the ordinary decline to admit the return of the appraisers setting apart to the widow all the equity in a farm owned by the deceased at his death; alleging that the appraisers valued the farm or the equity therein at $2,400 that the appraisers in making their return did not make an investigation of the solvency or insolvency of the estate or of the amount of money already in the hands of the widow, or of the amount required for her support and maintenance for twelve months, but only signed the return as presented to them, and without knowledge of the existence of the funds presented to them, and without knowledge of the existence of the funds in the widow's hands; and that the appraisers would have taken into consideration the sums in the hands of the widow had they known the circumstances or had they had knowledge of the status of the estate. The caveators contended that to grant the application and admit the return to record would deprive them of receiving anything from their father's estate, and would turn it all over to the widow his second wife, who was not the mother of the caveators none of whom were minors. At the same term, on January 2, 1939, the ordinary rendered a judgment in which he recited the fact of the application for a year's support and the filing of the caveat, and stated that all of the parties thereto agreed to a settlement of all the claims and demands of the widow for a year's support; and that he accordingly set apart to her, not what the appraisers had set apart, but the sum of $1,150, some household and kitchen furniture, and $350 of other money. Following the signature of the ordinary to this judgment is the recital: 'The above and foregoing order is hereby agreed to, and the terms thereof approved and accepted. This January 2, 1939.' This was signed by the widow and by her attorneys, and by the attorneys 'for administrator and heirs at law of E. W. Howell,' the latter attorneys being the same as those who filed the caveat. No appeal from the judgment of the court of ordinary was taken, and no petition was filed in the ordinary's court seeking to set aside the judgment and order.

On March 31, 1939, two of the caveators, Charley C. Howell and Mrs. Bean, filed in the superior court a petition seeking to have set aside a 'purported settlement' between the widow and the heirs at law, alleging that this settlement was inequitable and unconscionable, and in violation of the rights and interests of the plaintiffs, heirs at law of the deceased. They named as defendants Ellen Howell, the widow and all of the others who with petitioners were the caveators. They alleged that they were not present when the settlement was made, and did not authorize it; and that 'although these plaintiffs state upon information and belief that said attorneys were acting upon the assumption that they had a right to appear for these plaintiffs in making said purported settlement, and do not charge them with any misconduct or with doing anything wilful...