Malox v. Maloy

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN
• Citation: Malox v. Maloy, 68 S.E. 80, 134 Ga. 432 (Ga. 1910)
• Decision Date: 27 April 1910
• Parties: MALOX v. MALOY et al.

68 S.E. 80

(134 Ga. 432)

MALOX

v.MALOY et al.

Supreme Court of Georgia.

April 27, 1910.

(Syllabus by the Court.)

1. Guardian and Ward (§ 161^*)—Proceedings for Discharge—Appeal—Judgment.

An application was made in the court of ordinary for letters of dismission to be issued to a guardian. A caveat was filed thereto, which, among other things, alleged irregularity and fraudulent conduct on the part of the guardian, and also that his original appointment was void, and prayed for a decree declaring it to be so, and that all returns, orders, and decrees of the court of ordinary obtained for and against the estate, and all the actings and doings of the guardian, be canceled and declared void and of no effect, including an order for the sale of realty which had been granted, and under which a sale had taken place, and for such other orders and decrees as might seem meet and proper. The ordinary overruled the caveat, and an appeal to the superior court was entered. When the case came on for trial, counsel for the caveators introduced in evidence the original application and proceedings in the court of ordinary under which the guardian was appointed, and thereupon moved for a decree declaring that the appointment of the guardian was void. It does not appear that any evidence had been introduced by the applicant for discharge, or that the introduction of evidence had closed. The presiding judge granted a decree declaring the appointment of the guardian void, but making no reference to any disposition of the application for discharge. He declined to submit the appeal to the jury or to dismiss it on motion. Held, that such a decree so entered was erroneous.

[Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. § 161.*]

2. Guardian and Ward (§ 161*)—Jurisdiction— Appeal from Court of Ordinary.

A court of ordinary is not vested with the powers of a court of equity as to cancellation or other like equitable remedies; nor, on appeal from a decision of the court of ordinary in regard to granting letters dismissory to a guardian, has the superior court, as an appellatecourt, broader powers in reference thereto than the court from which the appeal was taken.

[Ed. Note.—For other cases, see Guardian and Ward, Dec. Dig. § 161.^2-*]

3. Exceptions, Bill of (§ 56*)—Certification.

After certifying that the recitals in the bill of exceptions as to rulings of the court and how they were made are true and correct, the presiding judge is not authorized afterward to make a certificate conflicting with that which he has already signed.

[Ed. Note.—For other cases, see Exceptions, Bill of, Dec. Dig. § 56.*]

4. Exceptions, Bill of (§ 56*) —Supplemental Certificate of Evidence—Certification.

Under the act of 1905 (Acts 1905, p. 84), if there is no brief of evidence on file in the trial court, and the evidence is sought to be brought up in the bill of exceptions, and any material evidence is omitted therefrom, within 20 days from the service of the bill of exceptions the judge may, on proper motion, make a supplemental certificate of the evidence so omitted, and such supplemental certificate, with the evidence so certified, shall be sent to this court and form a part of the bill of exceptions. But the original bill of exceptions, with the evidence included in it, being certified by the judge, the additional evidence must likewise be certified and verified by his signature.

The law does not authorize the presiding judge, where there is no brief of evidence on file, to declare that some evidence has been omitted from the bill of exceptions, describe it in general terms, and leave the clerk to find and identify evidence as that introduced, and send it to this court.

[Ed. Note.—For other cases, see Exceptions, Bill of, Dec. Dig. § 56.*]

5. Appeal and Error (§ 532*)—Proceeding for Dismission—Appeal—Record.

Where application was made in the court of ordinary for letters of dismission to be granted to a guardian, and from his decision an appeal was taken to the superior court, this did not carry up the record of the original appointment of the guardian or make it a part of the record of the superior court. If, on the trial of the appeal of the case made by the petition for letters dismissory, the original record of the appointment in the ordinary's court was introduced in evidence, it did not ipso facto become a record of the superior court; nor did the clerk of that court have any authority to certify a copy of such record of the ordinary's court to this court, as a part of the record in the appeal case.

(a) If it is desired to have evidence introduced in the superior court, whether consisting of the record from another court or not, brought to this court, it should be done in the regular modes prescribed by law for bringing up evidence. It cannot be done by ordering the clerk of one court to certify a copy of a record belonging to another court, and to transmit it to this court.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 532.*]

Error from Superior Court, Decatur County: Frank Park, Judge.

Petition of R. T. Maloy, guardian of S. E. Maioy, for letters of dismission from the guardianship, E. N. Maloy and others filed a caveat to the discharge. The prayer of the caveat was denied, and, from a judgment of the Superior Court on appeal, petitioner brings error. Reversed.

R. T. Maloy filed In the court of ordinary a petition for letters of dismission from the guardianship of S. E. Maloy, alleging that he had fully executed his trust. Citation issued. Thereupon certain persons, who alleged that they were the heirs of S. E. Maloy. and that he died intestate, filed, apparently in the nature of a caveat or objection to the discharge of the guardian, a paper in the form of a petition. It alleged, in brief, as follows: Prior to the death of S. E. Maloy, upon the petition of R. T. Maloy, on November 1, 1904, the ordinary of Decatur county issued to eight named persons a commission, requiring them to inquire into the condition of S. E. Maloy; R. T. Maloy having made affidavit that he was an imbecile from old age and other causes, and incompetent to transact his business. On November 2d, five of the persons named in the commission and another returned a report to the effect that they had made such examination and found S. E. Maloy to be an imbecile from old age and other causes, and not of sound and disposing mind, and that he should have a guardian appointed. (The record shows that six of the eight commissioners made the return.) Thereupon the ordinary appointed R. T. Maloy guardian of the person and property of the alleged imbecile, and fixed his bond, and the appointee qualified. At the same term of court he made application for leave to sell real estate of the ward, which was granted at the next term. There is no record in the ordinary's office of an inventory or return of the estate of the ward, made by the guardian in 12 months after his appointment and qualification, as required by law. He took charge of certain real and personal property set out. By virtue of the order to sell the real estate, it was sold, and another person bid it in for R. T. Maloy, "guardian as aforesaid, " for the sum of $1,500, when they both knew the amount was not the value of the real estate. The sale was made by collusion to defraud the estate and the ward by the collection of a certain note payable to the person who bid In the property. While the ward was an imbecile and unable to make a contract, another person persuaded and induced him to sign the note, which was also signed by such other person. The guardian, the payee, and the other maker colluded together, and the payee sued on the note and obtained judgment. The guardian filed no defense, though he knew that the note was executed when S. E. Maloy was unable to make any valid contract. The guardian has made his return to the ordinary, pretending that he paid the money derived from the sale of the land in satisfaction of the execution issued on the judgment, thus expending the entire estate except a very small amount, and applying for final discharge from the guardianship and administration of the ward. The commission appointing eight persons to act ascommissioners to examine into the condition of an imbecile from old age and other causes was without authority of law and void. The act of six of such commissioners was unlawful, as no number less than twelve could act in such a case. The ordinary had no authority to appoint a guardian upon such a return. R. T. Maloy has taken charge of all the property stated in his petition, and has made no inventory and return as required by law. All of his actings and doings are void. The petitioners prayed that the appointment of the guardian be set aside and declared void; "that all his actings and doings be so decreed void;" that the sale and order authorizing the sale of the real estate be declared void and of no force and effect; "that all returns, orders, and decrees of the court of ordinary of Decatur county, obtained for and against the said estate of S. E. Maloy, and that all the actings and doings of R. T. Maloy, guardian, be and the same canceled and declared void and of no effect; and such other orders and decrees as may seem [meet] and proper, and will ever pray." Objections to the discharge were also separately filed, on the grounds that the applicant had not accounted by returns or otherwise for the disposition he had made of certain specified personal property, and that, although there was sufficient personal property and income from the estate to support the ward, he had made application to sell the real estate on the day of his appointment, and before making any inventory, so that the ordinary could pass upon the condition of the estate in allowing the guardian to sell a part of it; and that, "said order and application being fraudulently obtained, it should be set aside and declared void."

The ordinary passed an order denying the prayer of the...