Mitchell v. Arnall
| Decision Date | 18 March 1948 |
| Docket Number | 16144. |
| Citation | 47 S.E.2d 258,203 Ga. 384 |
| Parties | MITCHELL v. ARNALL et al. |
| Court | Georgia Supreme Court |
Charles G. Bruce and Mitchell & Mitchell, all of Atlanta, for plaintiff in error.
Grant Wiggins, Grizzard & Smith and J. F. Kemp, all of Atlanta for defendant in error.
Syllabus Opinion by the Court.
A son alleged to have been born after the execution of the will of his father, which made no provision for after-born children and which left the entire estate to his wife, brought suit in ejectment against those purchasing for value from antecedent purchasers for value under a foreclosure against the mother, on the faith of the probate in solemn form of said will after the child had been made party to the probate proceeding by the appointment of a guardian ad litem, who by his answer in that proceeding stated that after investigation he knew of no legal reason why the will should not be proven as prayed. Embodied in the petition for probate by the person nominated as executor were allegations as to the date of the will, the age of the son, and the date of the death of the testator, which taken together would amount to an averment by the petitioner for probate that the child was born after the execution of the will. The judgment of the Court of Ordinary probating the will in solemn form was set aside in a proceeding instituted several years after the probate, but long after the innocent purchasers had already acquired title on the faith of such judgment. The court sitting as both judge and jury under an agreed statement of facts found in favor of the defendant, to which judgment the plaintiff in the ejectment suits excepts. Held:
1. 'In all cases, the marriage of the testator or the birth of a child to him, subsequently to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will.' Code, § 113-408.
2. The probate of a will in solemn form is 'conclusive upon all the parties notified, and all the legatees under the will who are represented in the executor.' Code, § 113-602.
3. Code, § 110-701.
4. A judgment of a court having jurisdiction of both the parties and the subject metter, however irregular or erroneous, is binding until set aside. Freeman v. Bass, 34 Ga. 355, 89 Am.Dec. 255; Porter v. Rountree, 111 Ga. 369, 36 S.E. 761; Code, § 110-708.
5. Every presumption will be indulged in favor of the validity of a judgment rendered by a court having jurisdiction of the subject-matter and the parties; and until set aside in a manner prescribed by law, will be given effect. Stuckey v. Watkins, 112 Ga. 268, 37 S.E. 401, 81 Am.St.Rep. 47; Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688, 694. In the Kaiser case this court said that the judgment of the Court of Ordinary there considered was not void 'because its invalidity cannot appear without an inquiry into the facts, an inquiry which the court itself must be presumed to have made, and which will not, therefore be permitted to be reviewed collaterally.' In the body of the opinion the court quotes with approval from 7 R.C.L. 1029, § 57, as follows: 'As applied to the subject-matter of a suit, jurisdiction is always conferred by law, and it is incorrect to suppose that the power to decide in any case rests solely on the averments of a pleading, but on the contrary the jurisdiction of a court in no way depends on the sufficiency or insufficiency of the pleadings, and if the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to hear and determine the issues involved.' The court also in that case applied the well-recognized principle 'that the court of ordinary in Georgia is a court of record and that every intendment will be indulged in favor of judgments of this court.' Citing Bush v. Lindsey, 24 Ga. 245, 71 Am.Dec. 117, and Stuckey v. Watkins, 112 Ga. 268, 37 S.E. 401, 81 Am.St.Rep. 47.
6. 'If one with notice shall sell to one without notice, the latter shall be protected; or if one without notice shall sell to one with notice, the latter shall be protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.' Code, § 37-114.
7. The question involved in this suit in ejectment by the alleged after-born son is whether the judgment admitting the will to probate in solemn form was void or merely erroneous or voidable.
8. In ordinary suits all averments made in a petition by which a plaintiff seeks to establish his own rights are binding upon him until and unless stricken by amendment with the result that he is powerless to dispute them. Lydia Pinkham Co. v. Gibbs, 108 Ga. 138, 141, 33 S.E. 945; Alabama Midland R. Co. v. Guilford, 114 Ga. 627, 40 S.E. 794; Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321(2), 78 S.E. 900.
9. This rule could not, however, have controlling force and effect where an individual nominated as executor...
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