Kinney v. Crow

• Decision Date: 11 October 1938
• Docket Number: 12466.
• Citation: 199 S.E. 198,186 Ga. 851
• Parties: KINNEY v. CROW et al.
• Court: Georgia Supreme Court

199 S.E. 198

186 Ga. 851

KINNEY v. CROW et al.

No. 12466.

Supreme Court of Georgia

October 11, 1938

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by Josephine Vinson, a minor, by Mrs. Susie Crow, as next friend, against Lillie Kinney and the Prudential Insurance Company of America for judgment on a life policy and for an injunction to restrain defendant Lillie Kinney from proceeding further with application for appointment of guardian of the plaintiff or from filing proceeding against the defendant insurance company to collect proceeds of life policy and to restrain the insurance company from paying proceeds of life policy to any person other than plaintiff or to her next friend for the benefit of the plaintiff. To review orders overruling a demurrer to the petition and granting an interlocutory injunction, defendant Lillie Kinney brings error.

Reversed.

RUSSELL C.J., and ATKINSON, P.J., dissenting.

158I Nature, Form, and Contents in General

In suit against insurer and nonresident defendant wherein judgment on life policy was prayed against insurer and equitable relief was sought and insurer filed cross-action to be permitted to pay proceeds of policy into court, reversal of interlocutory order overruling demurrer of nonresident defendant as to whom venue was improperly laid and continuing restraining order as temporary injunction against nonresident defendant would not affect insurer's cross-action or consent order entered thereon where no questions were raised with respect thereto. Code 1933, § 3-510.

Syllabus by the Court.

1. Since the amendment to the constitution as ratified in 1916 referring to the docketing and hearing of cases in the Supreme Court, and the passage of the act of August 25, 1925 providing that in equity cases where extraordinary relief is sought the trial court may hear and determine demurrers at interlocutory hearing before the appearance or first term the Supreme Court has jurisdiction, on a single bill of exceptions, to consider and review an order overruling a demurrer to a petition for extraordinary equitable relief and an order granting an interlocutory injunction thereon, where both of such orders were rendered at interlocutory hearing and where the bill of exceptions was sued out within twenty days from the date of each of such rulings.

2. In determining the sufficiency of a petition to withstand a demurrer, it is improper to consider facts that are not alleged in the petition.

(a) Equity cases shall be tried in the county where a defendant resides against whom substantial equitable relief is prayed.

(b) Under the allegations of the petition, the plaintiff showed no substantial equitable controversy with either of the defendants, unless with the defendant who resided in a county different from that in which the suit was filed. The court erred in not sustaining the demurrer of that defendant, and in not dismissing the petition for want of jurisdiction.

(c) The error in overruling the demurrer to the petition entered into and affected the further proceedings, rendering erroneous the grant of an interlocutory injunction as related to the non-resident defendant.

The petition in this case, alleged to be a suit by 'Miss Josephine Vinson, a minor, acting by and through her grandmother and her mother by adoption, Mrs. Susie Crow, as next friend,' was filed as a suit in equity in Bibb County against the Prudential Insurance Company of America, a non-resident corporation having an office and agency in Bibb County, and Mrs. Lillie Kinney, a resident of Putnam County. The petition alleged the following: The petitioner is the daughter of Mrs. Marjorie Crow Vinson, who died about seven years ago, and of John Vinson, who died in 1937. About five years before his death, the plaintiff's father, John Vinson, by voluntary contract released the parental power and control of the plaintiff to her maternal grandmother, Mrs. Susie Crow, who accepted that parental control and virtually adopted the plaintiff, and who from that time until recently has continuously, openly, and notoriously stood in the position of sole parent to the plaintiff. Mrs Susie Crow furnished the entire support and maintenance 'for said child' during the last five years of the life of John Vinson, the father, and John Vinson during this period recognized that the plaintiff 'was no longer his child, but was the child of Mrs. Susie Crow, the grandmother of said child.' John Vinson was killed in a railroad accident in December, 1937. About three weeks before the filing of this petition, the defendant Mrs. Kinney, who is a paternal aunt of the plaintiff, came to Macon and advised Mrs. Susie Crow that Josephine could recover a sum of money from the railroad company on account of the death of her father, and 'wanted the child to go to Athens, Georgia, for three days in order that the said business may be attended to.' Petitioner shows that 'said representation was false and fraudulent and made for the purpose of deceiving Mrs. Susie Crow, and for the fraudulent purpose of obtaining the custody and control of Josephine Vinson. Mrs. Kinney has filed an application in the court of ordinary of Putnam County, seeking to be appointed guardian of the person and property of Josephine Vinson, and alleging that the domicile of Josephine Vinson is in Putnam County, 'which is not true,' her domicile being in Bibb County.

The petition further alleged that such application for appointment as guardian will be heard before the ordinary of Putnam County on a named day in the near future. Mrs. Kinney should be enjoined from proceeding with such application, because the court of ordinary of Putnam County has no jurisdiction of petitioner, but the court of ordinary of Bibb County has such jurisdiction. The purpose of the application for guardianship is the collection of $1,000 as insurance on the life of John Vinson on a policy of insurance issued by the Prudential Life Insurance Company of America. Mrs. Kinney has demanded payment of this sum from the insurance company, 'and the said insurance company will pay said sum of money to Mrs. Lilly Kinney as guardian of Josephine Vinson under the void appointment if they are not restrained from so paying said sum of money.' Josephine Vinson is named as beneficiary in such policy and she should have judgment against the insurance company for the sum named. Mrs. Kinney knows that petitioner is not now, and has not in the past been a resident of Putnam County, and is attempting to practice a fraud on petitioner, the insurance company, and the court of ordinary of Putnam County, having 'wilfully misrepresented to the court of ordinary of Putnam County, Georgia, that your petitioner is a resident of Putnam County, Georgia.' Mrs. Susie Crow, the grandmother of petitioner, and 'by virtual adoption the mother of petitioner,' has filed an application for guardianship in the court of ordinary of Bibb County, 'which application is now pending and undisposed of, and she expects to be appointed guardian of petitioner within the time provided by law, and will qualify and give bond as provided by law when the appointment is made.' The petitioner has no adequate remedy at law. Mrs. Kinney being a resident of Putnam County, a second original should issue for service on her by the sheriff of that county. The petitioner prayed: (1) For process; (2) for judgment of $1,000 against the insurance company on the life policy; (3) for issuance and service of a second original on Mrs. Kinney; (4) for injunction to restrain Mrs. Kinney, her agents, and attorneys from proceeding further with her application for appointment as guardian in Putnam court of ordinary; (5) for injunction to restrain the insurance company 'from paying over any sum of money under said policy of insurance to anybody other than your petitioner, or to Mrs. Susie Crow for the benefit of your petitioner;' (6) that the insurance company be required to pay 'said sum of money into court, and that all questions as to the right to receive said sum of money be adjudicated in this proceeding;' (7) that Mrs. Kinney be enjoined from filing any proceeding against the insurance company to collect the stated sum of money or any other sum on account of insurance on the life of John Vinson, in which Josephine Vinson is named as beneficiary; and (8) for general relief.

Mrs Kinney filed a general and special demurrer, among the grounds of which were: '5. That said petition shows on its face that this court has no jurisdiction of the person of this defendant, and that said petition shows on its face that the jurisdiction is vested in the superior court of Putnam County, Georgia, as to this defendant. 6. That said petition shows on its face that Prudential Life Insurance Company has no real interest in this case, and that said company is a mere stakeholder of the funds, and said petition shows on its face that this defendant is the only defendant against whom substantial relief is prayed; and that said petition shows on its face that the real purpose of the suit is to obtain an injunction against the defendant and to keep her from being appointed guardian of the minor Josephine Vinson.' Subject to her demurrer, Mrs. Kinney also filed an answer. The insurance company filed an answer alleging, among other things, that it was ready, willing, and anxious to pay over the proceeds of the insurance policy to the person entitled to receive the same; that it has no interest whatever in the controversy between the applicants for letters of guardianship, but that it could not safely make payment to any particular applicant, even if one of them should obtain letters of guardianship. The company prayed (1) that it be permitted to pay the proceeds of the policy...