Rooke v. Day

• Decision Date: 28 October 1932
• Docket Number: No. 22172.,22172.
• Citation: 167 S.E. 762,46 Ga.App. 379
• Parties: ROOKE. v. DAY.
• Court: Georgia Court of Appeals

46 Ga.App. 379

167 S.E. 762

ROOKE.

v.DAY.

No. 22172.

Court of Appeals of Georgia,

Division No. 2.

Oct 28, 1932.

Rehearing Denied Feb. 15, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Petition by W. J. Rooke, surviving administrator, against E. B. Day. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Geo. & John L. Westmoreland, of Atlanta, for plaintiff in error.

Robt. B. Blackburn, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

This was a proceeding by rule nisi to vacate a previous judgment of the court of ordinary allowing a second year's support to the widow of an intestate. The original ground of the motion was that the administrators of the intestate had not been served with notice of the application for a second year's support. The record shows an acknowledgment of service by attorneys for the administrators, dated the same day as that on which the application was filed; that subsequent to the return of the appraisers citation was issued and published; and that, no objection having been filed, the return of the appraisers was admitted to record at the next regular term of the court of ordinary. The ordinary overruled the petition to set aside, and on appeal to the superior court a verdict and judgment to the same effect were entered. The administrators now except to the order overruling their motion for a new trial on the issue as to service, and also except to the ruling disallowing their proffered amendment setting up that the application for the second year's support was not served ten days before it was filed. The amendment also sought to show, as a reason for setting aside the judgment allowing the second year's support, that the applicant was not entitled thereto, for the reason that there were then outstanding debts owing by the estate. Held:

1. Attorneys at law "have authority to bind their clients in any action or proceeding, by any agreement in relation to the cause, made in writing, and in signing judgments, entering appeals, and by an entry of such matters, when permissible, on the dockets of the court; but they can not take affidavits required of their clients, unless specially per mitted by law." Civil Code 1910, § 4955. While an attorney at law may not, without authority, accept service of process by which the court acquires jurisdiction over a party (Clark v. Morrison, 85 Ga. 229, 11 S. E. 614; and see Hendrix v. Cawthorn, 71 Ga. 742; Buice v. Lowman Gold, etc., Mining Co., 64 Ga. 769), and while it has been held that a judgment rendered against a party upon a wholly unauthorized appearance of an attorney may be set aside in a direct proceeding for that purpose (Anderson v. Crawford, 147 Ga. 455 (1), 94 S. E. 574, L. R. A. 1918B, 894), still where an attorney at law has actually appeared in court on behalf of his client, and has thus become the attorney of record for that party, his authority as an officer of the court cannot be limited by any private agreement between his client and himself, and if the attorney of record continues to act as such, after he has in fact been discharged, the client continues to be bound thereby, until the record which establishes his attorneyship is made to indicate his discharge. 6 C. J. 644, § 148. In the instant case it appears, without dispute, that service of the application of the widow for a second year's support was acknowledged by the attorneys who had already appeared as attorneys of record for the administrators in the court or ordinary. Neither the purpose nor the effect of such service was to give the court of ordinary jurisdiction over the administrators already engaged in administering the assets of the estate under the orders of that court, but it was intended merely to comply with the statutory requirements of the Civil Code 1910, § 4041, incident to the administration and pertaining to the necessary expenses thereof. While there is evidence to show that prior to such acknowledgment of service the administrators had paid the attorneys in full for their services up to the date of the payment, under an understanding between them that they or other attorneys would be engaged if further legal services were needed, it nevertheless appears from the record that the administration of the estate had not been completed, and the records of the ordinary's court show nothing to indicate that the attorneys of record acknowledging service for the administrators did not continue in such capacity. In addition to this, it appears, without dispute, that before filing such application the attorney for the widow had consulted with one of the administrators with reference thereto, and had been referred by him to the attorneys who acknowledged service upon the application. In these circumstances the verdict finding that notice of the application for a year's support had been given was demanded.

2. This division of the syllabus deals with the contention that service on the administrators should have been made ten days prior to the filing of the application. A year's support to the widow and minor children ofa deceased person is accounted among "the necessary expenses of administration, " and it is the duty of the ordinary, on the application of the widow, or the guardian of the child or children, or any other person in their behalf, on notice to the representative of the estate (if there is one, and if none, without notice), to appoint appraisers to set apart and assign to the widow and children, or children only, a sufficiency of the estate for their support and maintenance for twelve months. Civil Code 1910, § 4041. Since the notice required to be given to the representative of the estate, when there is one, does not relate to the institution of a suit in the court of ordinary, but merely to a matter incident to the administration of the estate, for the allowance of a year's support as a part of "the necessary expenses of administration, " and since, under the provisions of the Civil Code 1910, § 4043, citation must issue and be published for four weeks after the return of the appraisers before the return can be recorded, which time is allowed by statute for the filing of objections, it would not seem useful or necessary, nor is it required by the language of the statute quoted above, that notice of the application for the appointment of appraisers to set apart the year's support be served upon the representative of the estate...