Saliba v. Saliba

• Decision Date: 16 May 1947
• Docket Number: 15781.
• Citation: 42 S.E.2d 748,202 Ga. 279
• Parties: SALIBA et al. v. SALIBA.
• Court: Georgia Supreme Court

42 S.E.2d 748

202 Ga. 279

SALIBA et al. v. SALIBA.

No. 15781.

Supreme Court of Georgia

May 16, 1947

Syllabus by the Court.

1. It is beyond the scope of a guardian ad litem's authority to consent to the probate of a will which by the birth of his ward has been revoked by operation of law, and a petition alleging such facts states a cause of action for setting aside the judgment of probate.

2. A next friend has no authority to compromise or settle a suit except by leave of the court.

3. Issues which are made, or which under the rules of law could have been made in the cause, cease to be res judicata when the judgment therein rendered is set aside in a court of competent jurisdiction. Code, § 110-501.

4. The allegations of the petition were sufficient to show such fraud as would authorize the setting aside of the judgment complained of.

5. Where there is such a common connection between different causes of action as to render it proper for a court of equity to determine all of them in one suit, and this can be done with safety and without great inconvenience to any of the parties, the petition should not be dismissed upon the ground of multifariousness.

6. All persons who are directly or consequently interested in the event of a suit should be made parties.

7. In order to set aside a judgment, it is necessary that the parties thereto, or their representatives, be made parties to the proceeding in which it is sought to have that done.

8. An executor de son tort is one who wrongfully intermeddles with or converts to his own use, the personality of a deceased individual whose estate has no legal representative. The provisions of the Code, § 113-1102, are not applicable to one who takes possession of the assets of an estate in his representative capacity after he was appointed and qualified either as executor or administrator.

9. A conclusion in a pleading is not subject to special demurrer if the inference stated therein may be legitimately drawn from the special facts pleaded or from exhibits attached to and made a part of the pleadings.

This is the second appearance of this case in the Supreme Court. When it was here before in Saliba v. Saliba, 201 Ga. 681 40 S.E.2d 732, we held that, under the pleadings as they then stood and the proof in support thereof, the court did not err in granting a temporary injunction and appointing a receiver. In the opinion we fully set out the allegations of the petition, the amendment thereto, and the response. Since then the pleadings have not changed, except the defendants have demurred to the petition as amended. It is, therefore unnecessary to set out again the allegations of the pleadings as they were when we first dealt with the case.

The demurrer attacks the petition upon the following general grounds: (1) The petition sets forth no cause of action, legal or equitable, against Mrs. Adele George Saliba, either individually or as representative of the estate of George M. Saliba I; (2) it sets forth no cause of action, legal or equitable, against Mrs. Camilla Saliba Shibley, individually or as representative of the estate of John Rogers Saliba, nor against the minor children of Mrs. Shibley; (3) insofar as the petition seeks to set aside the judgment in the court of ordinary probating the will of John Rogers Saliba, it sets forth no cause of action, because the petition shows on its face that the grounds alleged for this purpose are the same as those which were alleged, or which could have been alleged, in a former equitable suit brought by the plaintiff in the Superior Court of Terrell County, Georgia for the same relief, resulting in a final judgment adverse to him on December 6, 1945; (4) it affirmatively appears from the petition that this suit seeks to set aside a final judgment in a former equitable suit in Terrell Superior Court, upon the same grounds and for the same relief as those alleged therein, which terminated by final judgment adverse to the plaintiff on December 6, 1945; (5) it does not set forth a cause of action, legal or equitable, as against any of the defendants, because the allegations of fraud are insufficient to authorize the court to set aside the judgment rendered in the equitable suit on the date stated.

The petition was demurred to specially on the grounds of multifariousness, misjoinder and nonjoinder of parties, and because it contains allegations which the demurrants insist are mere conclusions of the pleader. They further specially demurred to paragraph 3 of the plaintiff's amendment because it is not alleged in what manner George M. Saliba I assumed to act as executor of the estate of John Rogers Saliba, what personal property of the estate he took charge of and converted to his own use, or any other fact sufficient to show a right of recovery under the Code, § 113-1102; and because this part of the amendment is repugnant to and inconsistent with paragraph 4 of the petition, which alleges that the will of John Rogers Saliba was probated, and George M. Saliba I was appointed and qualified as executor. They also specially demurred to paragraph 4 of the amendment because it is not alleged how, when, or in what manner the defendant, Mrs. Camilla Saliba Shibley, assumed to act as administratrix with the will annexed of the estate of John Rogers Saliba, what personal property of the estate she took charge of and converted to her own use, or any other fact sufficient to show a right of recovery under the Code, § 113-1102; and because this allegation of the amendment is repugnant to and inconsistent with paragraph 2 of the petition, which alleges that Mrs. Shibley was appointed administratrix with the will annexed of the estate of John Rogers Saliba.

To a judgment overruling the demurrers the defendants excepted and the case is here for review.

H. A. Wilkinson, R. R. Jones, and W. L. Ferguson, all of Dawson, for plaintiffs in error.

Farkas & Burt, of Albany, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

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. In Sutton v. Hancock, 115 Ga. 857, 863, 42 S.E. 214, 217, this court said: 'The fact that the testator may have lived some time after the birth of the child, and failed to make any change in his will, can make no difference. The will was void immediately upon the birth of the child, and nothing the testator might do or fail to do could give it life. It was dead as completely as if he had destroyed it by burning, or any other means known to the law.' The petition filed by George M. Saliba I to probate the will of John Rogers Saliba affirmatively showed on its face that the will had been revoked by the birth of the plaintiff, he having been born after the execution of the same and no provision having been made in contemplation of such event. No contention is here made that the will was not revoked by the birth of the plaintiff, but it is urged that he is bound by the judgment probating it, since he was represented in that proceeding by a guardian ad litem. The record shows on its face that the plaintiff was two months old when the judgment of probate was rendered by consent obtained by the propounder from the plaintiff's guardian ad litem. The petition alleges that the mother of the plaintiff was an inexperienced person; that she had confidence in the propounder, and was told by him that the will provided for her and the plaintiff, and she was never advised by the propounder or his attorney that the will had been revoked by operation of law on the birth of the plaintiff. In Nelson v. Estill, 190 Ga. 235, 243, 9 S.E.2d 73, 77, this court said: 'The plaintiffs in error invoke the general rule that an infant is bound by a judgment rendered in a suit in which he is represented by a next friend, to the same extent as though he were an adult. Walden v. Walden, 128 Ga. 126(7), 57 S.E. 323; Reeves v. Lancaster, 147 Ga. 675, 95 S.E. 246; Id., 159 Ga. 540(4), 126 S.E. 480. This general rule is subject to an exception in case of fraud, collusion, or like conduct on the part of the next friend. Watkins v. Lawton, 69 Ga. 671(3); Gentle v. Georgia Power Co., 179 Ga. 853, 854, 177 S.E. 690; Hargrove v. Youmans, 181 Ga. 614, 183 S.E. 564. In such case the judgment may be set aside at the instance of the minor, and this is true, although it may be a consent judgment. Mobley v. Belcher, 144 Ga. 442, 87 S.E. 470; Carroll v. Atlantic Steel Co., 151 Ga. 378, 106 S.E. 908, 15 A.L.R. 660; Speck v. Speck, 42 Ga.App. 517, 15 S.E. 706; 31 C.J. 1141, § 298. The court did not err in overruling the demurrer on the general ground that the petition did not set forth a cause of action.'

We do not think it necessary to enter into any extended discussion of the authority of a guardian ad litem to represent and bind his ward, but it is sufficient here to say that, where a proceeding is filed to probate a will which unquestionably has been revoked by the subsequent birth of a child, and no provision has been made in contemplation of that event, and the fact appears on the face of the proceedings, consent by a guardian ad litem that the will be probated is clearly beyond the scope of his authority, and on a proper application for that purpose the judgment of probate should be set aside. The allegations of the petition, therefore, are sufficient to state a proper cause of action for setting aside the judgment of probate.

2. But how stands the petition with reference to setting aside the judgment sustaining the demurrer and dismissing the suit in the equitable proceeding filed in the Superior Court of Terrell...