Logan v. Nunnelly, 47470
| Decision Date | 02 February 1973 |
| Docket Number | No. 2,No. 47470,47470,2 |
| Citation | 128 Ga.App. 43,195 S.E.2d 659 |
| Parties | Ruby C. LOGAN v. Alice L. NUNNELLY et al |
| Court | Georgia Court of Appeals |
Frank M. Gleason, Ross L. Hatcher, III, Rosseville, for appellant.
Herman J. Spence, Bobby C. Milam, Blue Ridge, for appellees.
Syllabus Opinion by the Court
On March 24, 1971, Ruby C. Logan filed an application for permanent letters of administration on the estate of Charlie T. Logan, her deceased husband.
On April 20, 1971, Alice Lee Nunnelly and Helen Stephens filed a caveat to the application for permanent letters of administration. The caveat alleged that Charlie Logan was lawfully married to Ethel Harper on September 9, 1927, in Gilmer County, Georgia; that Ethel Harper Logan was still in life and that the marriage of Charlie Logan to Ethel Harper had never been dissolved by divorce or annulment. Hence, the caveators contend that the applicant was never lawfully married to Charlie Logan and that she was not his widow. Thus, she was not entitled to permanent letters of administration on his estate.
The case came on for hearing before the Court of Ordinary of Gilmer County. The court entered an order sustaining the caveat and denying the application of the applicant to be appointed permanent administratrix.
Applicant appealed to the Gilmer Superior Court and the case was tried before a jury which returned a verdict in favor of the caveators. The trial judge in the final judgment provided that the decree of divorce dated February 11, 1927 in the case of Charlie T. Logan v. Ethel Logan (#38690 in the Circuit Court of Hamilton County, Tennessee) be declared null and void; that Ruby C. Logan was not the lawful widow of Charlie T. Logan; that the applicant was not entitled to be appointed permanent administratrix of his estate. From this judgment applicant appeals to this court. Held:
Code § 110-701 repealed by the Civil Practice Act (Code Ann. § 81A-201(jj); Ga.L.1966, pp. 609, 687; 1967, pp. 226, 242, 243, 246, 247, 249) provided: 'A void judgment may be attacked in any court and by any person.' See Code § 110-708 and § 110-709 (still in effect). In construing Code § 110-701, the Supreme Court held: 'A domestic judgment can not be collaterally attacked as void unless its invalidity appears on the face of record.' Thomas v. Lambert, 187 Ga. 616(1), 1 S.E.2d 443. See Owenby v. Stancil, 190 Ga. 50, 58(6), 8 S.E.2d 7. As to judgments of other states, it was held that a judgment 'rendered by a court having jurisdiction of the subjectmatter, and apparently legal on its face, when offered as evidence in a cause pending in this state, can not be collaterally impeached for fraud.' Alabama Great Southern Railroad Co. v. Hill, 139 Ga. 224(3), 76 S.E. 1001. See Wood v. Wood, 200 Ga. 796, 800, 38 S.E.2d 545.
In Patterson v. Patterson, 208 Ga. 7, 10, 64 S.E.2d 441, the Supreme Court thoroughly discussed the effect of Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, and held under 'the rule prevailing in this State, that a decree of divorce, obtained by a husband in another State, wherein service was perfected on the wife, a resident of this State, by publication, and in which the plaintiff in such foreign judgment was not in fact a bona fide resident of the State in which the judgment was rendered, could be attacked collaterally for fraud when offered in the courts of this State, as a bar to the wife's action for alimony.' Following the second Williams case, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, the court recognized that a decree might be collaterally attacked 'by proof that the court which rendered it had no jurisdiction of the parties or cause of action, even though the record of the proceedings in the foreign court purported to show jurisdiction.' However, the Supreme Court pointed out that the burden was upon the party asserting the invalidity of the out of state decree to show that it was not binding and that the jurisdiction of the out of state court is to be presumed until it is proved by evidence or the record itself.
Under Section 60 of the Civil Practice Act (Code Ann. § 81A-160(a); Ga.L.1966, pp. 609, 662; 1967, pp. 226, 239, 240) our law now provides: Construing this section and giving due regard to the full faith and credit provision of...
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...210 S.E.2d 237 (1974) ("[A] trial judge may grant relief although it was not specifically prayed for."); see also Logan v. Nunnelly, 128 Ga. App. 43, 46, 195 S.E.2d 659 (1973). Georgia courts may grant relief not originally requested in the complaint as long as there is a demand prior to th......
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Bowen v. State
...at trial it is a collateral attack and the State is limited to defects appearing on the face of the record. See also Logan v. Nunnelly, 128 Ga.App. 43, 44, 195 S.E.2d 859. As stated in the principal opinion: " '(a) motion to set aside a verdict and judgment is not an appropriate remedy in a......
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Chitwood v. Southern General Ins. Co.
...from defending this action by advancement of a collateral attack upon the validity of that judgment. See generally Logan v. Nunnelly, 128 Ga.App. 43, 195 S.E.2d 659 (1973). The return of service of the complaint in appellants' action against the uninsured motorist clearly shows, on its face......
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Eastlawn Corp. v. Bankers Equipment Leasing Co.
...Until the complaint in equity was discontinued, OCGA § 9-11-60(e), it was a method for direct attack. See Logan v. Nunnelly, 128 Ga.App. 43, 46, 195 S.E.2d 659 (1973). Now only OCGA § 9-11-60(b) is available to remedy a voidable domesticated Because the parties and the trial court, as well ......