Marshall v. Marthin

• Decision Date: 09 July 1941
• Docket Number: 13813.
• Citation: 15 S.E.2d 861,192 Ga. 613
• Parties: MARSHALL v. MARTHIN et al.
• Court: Georgia Supreme Court

15 S.E.2d 861

192 Ga. 613

MARSHALL v. MARTHIN et al.

No. 13813.

Supreme Court of Georgia

July 9, 1941

Syllabus by the Court.

1. The court of ordinary is a court of general jurisdiction; and unless the want of jurisdiction appears on the face of the record, its judgments cannot be collaterally attacked for fraud.

2. Such an attack on a judgment granting administration, when the want of jurisdiction does not so appear, the attack being contained in a petition seeking only a recovery of an undivided interest in land and mesne profits, and the only prayer, aside from one for process, being such as is appropriate for such recovery, and the personal representative of the estate not being a party to such suit is a collateral attack.

3. The demurrer of the defendant to the petition as amended should have been sustained and the action dismissed.

DeLoss H. Marthin and others, claiming undivided interests as heirs at law in the estate of Mrs. Mary J. Pair, deceased consisting of realty and personalty located in Fulton and DeKalb Counties, brought their petition in Dekalb superior court against James Henry Marshall, a resident of Fulton County, alleging, in substance, as follows: Mrs Pair died leaving but one child surviving, the defendant James Henry Marshall, and no living husband. The defendant was one of six children of Mrs. Pair. All her other children, except her daughter Orpha, died without children. This daughter died, and the plaintiffs are her children and grandchildren. All of them reside outside of Georgia. About four days after the death of the defendant's mother he requested one Matthews to apply to the court of ordinary of DeKalb County to be appointed administrator of the estate of Mrs. Pair, the defendant stating to Matthews that he was the sole heir of Mrs. Pair. Matthews received the appointment as administrator, and applied to the court of ordinary for leave to sell the lands of the estate in DeKalb and Fulton Counties. He was granted said leave to sell and did sell a described tract or parcel of land in DeKalb County for the expressed consideration of $4,350, the defendant being the purchaser; but no money was passed, the defendant stating to the administrator that he was the sole heir of Mrs. Pair. The plaintiffs are informed and believe, and so charge, that Matthews, the administrator, also conveyed the lands in Fulton County to the defendant in the same manner; that the estate consisted also of specified personalty of the value of $3,000; that, after paying the funeral expenses and other debts and the costs of administration, the administrator turned over all proceeds of the estate to the defendant Marshall; that the defendant executed and issued real-estate bonds aggregating $3,500, to secure the payment of which he executed to J. Howell Green a trust deed conveying the described property in DeKalb County; that the defendant obtained the money on these bonds by reason of his misrepresentation to the administrator that he was the sole heir of Mrs. Pair, which misrepresentation appears of record in the court of ordinary, and was a fraud upon the other heirs of Mrs. Pair and upon the court of ordinary, perpetrated by the defendant for the purpose of obtaining the entire estate. Each of the petitioners seeks to recover his or her undivided interest in the lands in DeKalb County, and to have the court declare title in petitioners in accordance with the respective interest of each, as well as to their interests in the proceeds of the lands in Fulton County, which they are informed, believe, and charge were sold by the defendant, he receiving the proceeds thereof, and their undivided interests in the other assets of the estate above referred to; and that should there be any other assets of the estate of Mrs. Pair, kept in a safety-deposit box at a bank, or elsewhere, the same should be accounted for by the defendant. The prayer (besides that for process and for second original for service on the defendant) was that the defendant be enjoined from selling, leasing, or disposing of the lands in DeKalb County, or any interest therein; that he be required to account for any property of the estate disposed of by him; that in the final disposition of the case such property and the bond issue of $3,500 be charged against defendant's interest; that each of the plaintiffs recover his or her respective undivided interest in the lands in DeKalb County, and, if necessary to a proper distribution of their interests among the parties, a sale of the DeKalb County lands be authorized and directed by the court.

The defendant filed a plea contending that DeKalb superior court was without equitable jurisdiction of his person or property, he being a resident of Fulton County. He demurred to the petition on general grounds.

The plaintiffs amended, striking the allegations in paragraphs 16 to 21 of the petition, striking all their prayers except that for process and service, and alleging that in April, 1926, the defendant procured a loan of money from a named bank, and on September 20, 1926, procured another loan from the same bank, and in each case executed a conveyance of the Fulton County lands of the estate of Mrs. Pair to secure the payment of said loans; that in March, 1928, he sold the lands to a purchaser who as part of the consideration assumed payment of said loans; and that the defendant's procuring these loans and selling the realty to pay them constituted merely a part of his scheme and device to obtain the entire property of the estate, and accounted for his procuring the appointment of Matthews as administrator, to whom he made the misrepresentation that he was the sole heir of Mrs. Pair. The amendment showed that on September 27, 1926, the administrator, on his application, was discharged. The plaintiffs alleged, that, being nonresidents of the State, they had not kept up with the affairs of Mrs. Pair, and did not know that she left any estate, or that an administrator had been appointed, until in the fall of 1940; that the defendant did notify one of them and through him the others, of the death of Mrs. Pair, but concealed from them the fact that she left an estate, and the fact that he had procured the appointment of Matthews as administrator, and concealed from them his false representation to the administrator that he was the sole heir; and that he has received the rents and profits from the lands of Mrs. Pair's estate, of the value of several hundred dollars per year. After making the foregoing allegations of fraud perpetrated upon them, the plaintiffs prayed that the suit proceed as one to recover the undivided interest of each of them in the 'land in controversy, fully set forth and stated in the petition, together with mesne profits.'

The defendant renewed his plea to the jurisdiction, and his general demurrer to the petition as amended. The judge overruled the demurrer, and the defendant excepted.

Robert B. Blackburn, of Atlanta, for plaintiff in error.

J. Howell Green, of Decatur, for defendants in error.

GRICE Justice.

1. The original petition was undoubtedly subject to the attack made upon it in so far as jurisdiction was concerned; for while land in DeKalb County was involved, it was not, under our decisions, a case respecting title to land, but an equity case within the meaning of par. 3, § 16, art. 6 of the constitution (Code, § 2-4303). Clayton v. Stetson, 101 Ga. 634, 28 S.E. 983; Magid of Tallulah, Inc., v Beaver, 183 Ga. 485, 189 S.E. 43. But a suit in equity may be changed by amendment into an action at law, where the amendment is not otherwise objectionable. Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53. This counsel for defendant in error undertook to do by converting it, as contended by him, into a suit to recover the undivided interests of his clients in the realty located in DeKalb County, so as to make it a case respecting title to land, the suit being filed in the county where the land lies. After the amendment, however, it appeared from the face of the petition that the sole defendant resided in Fulton County; that he had a deed to the property from the administrator of the ancestor under whom the plaintiffs claimed; that so far as it appears...