Jennings v. Smith

• Decision Date: 28 April 1916
• Citation: 232 F. 921
• Parties: JENNINGS et al. v. SMITH et al.
• Court: U.S. District Court — Southern District of Georgia

232 F. 921

JENNINGS et al. v. SMITH et al.

United States District Court, S.D. Georgia, Northeastern Division.

April 28, 1916

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Syllabus by the Court.

Callaway & Howard, of Augusta, Ga., John J. & Roy M. Strickland and E. K. Lumpkin, all of Athens, Ga., P. Cooley, of Jefferson, Ga., F. H. Colley, of Washington, Ga., and S. C. Upson, H. S. West, and T. J. Shackelford, all of Athens, Ga., for plaintiffs.

Hamilton McWhorter, of Athens, Ga., Sibley & McWhorter, of Lexington, Ga., Horace M. Holden and Cobb, Erwin & Rucker, all of Athens, Ga., E. F. Noel, of Lexington, Miss., Tye, Peeples & Tye, of Atlanta, Ga., D. W. Meadow, of Elberton, Ga., and Paul Brown, of Lexington, Ga., for defendants.

J. S. James and J. R. Bedgood, both of Atlanta, Ga., U. V. Whipple, of Cordele, Ga., Sam Swilling, of Royston, Ga., J. N. Talley, of Macon, Ga., C. F. Rhodes, of Yazoo City, Miss., and H. H. Perry and W. A. Charters, both of Gainesville, Ga., for interveners.

SPEER District Judge.

The federal question in this case exists because the judicial power of the United States extends to controversies between citizens of different states. Plaintiffs are citizens of Louisiana, the defendants of Georgia, and many of the latter reside in the Southern district and in the Northeastern division, in which the bill was filed. The jurisdiction of this court, because of diversity of citizenship, is therefore clear. Jurisdiction in the territorial sense is equally clear. The residence of one necessary defendant in the district, in the appropriate division, will in proper case draw to the court there the rights of all concerned, if essential to complete determination; that is, to final decree.

Is there also jurisdiction in equity? The undisputed facts will answer. James M. Smith, on the 11th day of December, 1915, was visited by sudden death. Unmarried, a man of mysterious origin, abnormal methods of life, of strong and dominating mind, he had accumulated a fortune which many termed millionaire might well covet. As a peddler among a people in their utmost penury, he had acquired the means of collegiate education. From the seat of his peddler wagon he stepped to the head of his class. His degree won, he repaired to the mountains where he was known, to borrow a paltry sum with which to buy the first acres of that landed domain which at his death a prince might have envied. The remorseless beneficiary of the intolerable system by which a state, founded to relieve the victims of legal oppression, for years farmed out to selfish greed the labor and the lives of its wayward, its unfortunate, its erring, and its felons, he drove his serfs in stripes and chains as the taskmasters of Egypt drove the ancient people of God. His whipping boss was a material witness.

With such unresisting, such frantic labor, in recurring harvests for all the years of his manhood life, his broad acres were white with the snowy luxuriance of cotton, or golden with corn and grain. Shrewd, economical, from the teachings of thrifty trade in the days of poverty, he well knew the value of every penny, and his amassment of wealth was sure, steady, and swift. While no adequate estimate had yet been possible, that his accumulations may be counted by millions may not be doubted. But the inevitable hour came. The strong man fell, and on that day the shades of night had scarcely fallen when his millions were in the hands of four men, two his salaried servants, one a neighbor without right, and yet another the judge of the only state court of general jurisdiction with power to resist the wrong and to protect those entitled to inheritance from loss and injury. These men are termed temporary administrators. They are Mitchell, the dead man's bookkeeper, Arnold, his neighbor, Holder, his manager, and Meadow, judge of the superior court.

To the dead man not one of them was even remotely related. While there were that day in the house of the dead, and about his corpse, those who it is now contended were of his inheritable blood, they were kept in utter ignorance of the scheme to seize administration. The four sped away after dark, found the ordinary, and obtained the appointment. The pretense for this precipitate action was the fear on the part of those acting that an illegitimate mulatto on the plantation (who claimed to be the son of James M. Smith), who at the time was under the influence of drink, would bring about a revolt or insurrection. To those who know the intrepid character of the white men of that section, this statement will not be impressive. Certainly it does not appreciably affect the mind of the court.

Now by the state law certain classes are entitled to administration. One is the next of kin. The four men appointed were not kin at all. The same Code section (3943) provides that, where no application is made by the next of kin, a creditor may be appointed. We have seen that the next of kin had no opportunity to apply, and the appointees applied as creditors. But they were no more creditors than kin. One, Arnold, testified that Smith owed him nothing, and he owed Smith nothing. Mitchell, who had long before answered an advertisement for a bookkeeper, but who could not come until Smith had paid his board bill and bought his railroad ticket, had annually received for his services the sum of $500 and his room and board. This man now (and after he was enjoined by this court from changing the status of the estate) entered on the account books of his dead employer a charge in his own favor of $24,000. A part of this he states was made up by 'tacit' promises of Smith to pay him a yearly salary of $6,000. As a witness he is incompetent, for Smith is dead; but, if competent, his testimony would not seem probable. Against Meadow, Smith held a promissory note of $4,000, and against Holder, similar notes of more than $20,000. Meadow's alleged claim against Smith is an unliquidated and indefinite demand for professional services rendered while himself a judge of the superior court. Since 1824, a superior court judge in Georgia is prohibited to practice law. Code, Sec. 4837. He, too, as a witness, is incompetent. No proof was made before the ordinary that any of these men were creditors. They must offer proof before the probate court that they are creditors. Schouler on Wills, Executors & Adm'rs (5th Ed.) par. 1115. In fact, they were nothing of the sort, and two, at least, were heavily indebted to the estate.

Another provision of Code section 3943, supra (clause 8): It provides:

'No person shall be appointed administrator who is neither of kin to the intestate, nor a creditor, nor otherwise interested in the grant of administration, except in the cases before provided.'

These men are within no exception. This prohibition is imperative, an order disregarding it is a transgression of authority, is utterly null and void, and may be so declared at the suit of any one lawfully concerned; especially null and void would be such an order when by fraud, without evidence or hearing, the order is obtained by deceitful statements that the applicants were within the eligible classes, when in truth and in fact they were not. The averment is jurisdictional. If false, it must be declared fraudulent, and the judgment thereby contained wholly void. The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be held in any court when it becomes material to the interest of the parties to consider it. Code, Sec. 5964. See, also, Myers v. Cann, 95 Ga. 385, 22 S.E. 611. There the president of a grocery company, which was a creditor, was adjudged ineligible, because not a creditor himself. The appointment of an administrator, not a creditor or next of kin, pronounced fraudulent, and sale by him set aside as void: Daniel v. Sapp, 20 Ga. 514. In McArthur v. Matthewson, 67 Ga. 134, Associate Justice Speer, for the unanimous court, declares that the grant of letters of administration by the ordinary may be set aside for fraud. 'To do this equity has jurisdiction. ' The court cites Mobley v. Mobley, 9 Ga. 247, Wallace v. Walker, 37 Ga. 265, 92 Am.Dec. 70, and Markham v. Angier, 57 Ga. 43. In the more recent case of Neal v. Boykin, 129 Ga. 678, 679, 59 S.E. 912, 121 Am.St.Rep. 237, the doctrine is reasserted. The court quotes with approval the language of the learned and careful Mr. Justice Cobb in Jones v. Smith, 120 Ga. 642, 48 S.E. 134: 'If it could be made to appear that the judgment of the court of ordinary appointing the * * * administrators was the result of a fraud perpetrated upon that court by a false representation, * * * it may be that the defendants would have a remedy by a direct proceeding in equity to set aside this judgment on the ground of fraud.'

The court concludes that, if the letters of administration were the result of a fraud perpetrated on the court by false representation that the necessary jurisdictional facts did exist, a court of equity would have power to set aside the judgment on the ground of fraud in its procurement. That the ordinary knew the falsity but aggravates the wrong. Then collusion would be added to fraud.

These men are not administrators; they are not officers of the state court. The ordinary was prohibited to appoint them. Three days later two other administrators were appointed on the petition of the invalid appointees. One of these is a debtor and a stranger to the estate, the other is said to be next of kin, but neither the application, the method of appointment, the record, or the order is such that manifests in the ordinary jurisdiction to add either name. The estate then, has no legal...