Smith v. Scarborough

• Decision Date: 14 March 1936
• Docket Number: 10734.
• Citation: 185 S.E. 105,182 Ga. 157
• Parties: SMITH v. SCARBOROUGH et al.
• Court: Georgia Supreme Court

185 S.E. 105

182 Ga. 157

SMITH v. SCARBOROUGH et al.

No. 10734.

Supreme Court of Georgia

March 14, 1936

On Rehearing March 28, 1936.

Syllabus by the Court.

1. "Courts of ordinary have authority to exercise original exclusive, and general jurisdiction of the following subject-matters: * * * The granting of letters testamentary and of administration, and the repeal or revocation of the same. * * * All such other matters and things as appertain or relate to estates of deceased persons." Code 1933, § 24-1901. The only restriction upon this general jurisdiction is found in section 24-1902: "The ordinary can grant administration upon no person's estate who was not a resident of the county where the application is made at the time of his death, or, being a non-resident of the State, has property in said county, or a bona fide cause of action against some person therein."

(a) Want of jurisdiction in the court of ordinary to grant letters of administration in a particular case is not shown by allegations that at the time of the grant of administration a will was on file in the office of the ordinary, which had been previously propounded, but, no caveat having been interposed, probate was refused on account of failure of the propounder to produce evidence that was accessible to establish the will; and that the will was subsequently probated. Such facts may be considered in the exercise of jurisdiction, but they are not jurisdictional facts.

(b) If in the circumstances stated above, the court of ordinary, in the exercise of its general jurisdiction, grants administration and authorizes a sale of property, such judgments are not void or nullities within the meaning of the Code 1933, §§ 110-701, 110-709, for want of power in the court to render them, merely because of the facts stated; and the sale is not subject to collateral attack in an action of complaint for land.

(c) Nor, under the facts stated, was the court, under the doctrine of lis pendens, deprived of jurisdiction or power to grant administration or order of sale.

2. "Ordinarily the plaintiff in his petition need not anticipate or negative a possible defense. Where, however such defense is anticipated, it must be effectually avoided, or the complaint is bad." James v. Maddox, 153 Ga. 208 (3), 111 S.E. 731.

3. The facts as substantially stated in the first division, and relied on to show want of jurisdiction in the court of ordinary for the purpose of granting administration and ordering sale of the land in question, being insufficient to charge want of jurisdiction, and the petition having alleged a deed from the administrator of the alleged testator, the common propositus, conveying the land to the defendant, the petition failed to allege a cause of action in favor of the plaintiffs against the defendant for recovery of the land; and consequently it was erroneous to overrule the general demurrer to the petition.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by J. M. Scarborough and others against E. B. Smith. To review a judgment overruling a demurrer to the petition, defendant brings error.

Reversed.

BELL, J., and RUSSELL, C.J., dissenting.

Tye, Thomson & Tye, of Atlanta, for plaintiff in error.

T. M. Smith, and Colquitt, Parker, Trout-man & Arkwright, all of Atlanta, for parties at interest.

J. D. Stewart and J. Wightman Bowden, both of Atlanta, and Brown & Brown, of McDonough, for defendants in error.

ATKINSON, Justice.

1. In Medlin & Sundy v. Downing Lumber Co., 128 Ga. 115, 57 S.E. 232, it was said: "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. Want of jurisdiction in the court of ordinary to grant letters of administration is not shown by the allegations of an application therefor, reciting the death of the decedent 68 years before the filing of the application by a resident of the state, that the decedent, at the time of his death, resided in the county where administration sought, leaving an estate, administration on which was necessary for the purpose of distribution among the heirs of the decedent, and that 'petitioner is entitled under the law to be appointed administratrix upon said estate, being one of the next of kin of the deceased."' In Martin v. Dix, 134 Ga. 481, 68 S.E. 80, it was said: "Where letters of administration have been granted by the court of ordinary having jurisdiction upon the estate of a decedent as in case of intestacy, and subsequently a will of the decedent is propounded and admitted to probate, this does not ipso facto render void a sale of land of the decedent by the administrator before the propounding of the will for probate, and under an order of the ordinary, duly granted, authorizing such sale. Patton's Appeal, 31 Pa. 465; Kittredge v. Folsom, 8 N.H. 98; Woerner's American Law of Administration (2d Ed.) §§ 266, 268. Such an order of sale could not be collaterally attacked in an action of ejectment brought by the legatee under the will, after its probate, by showing that the administrator knew of the existence of the will when he applied for appointment, and fraudulently concealed it, and obtained the appointment on the ground that there was an intestacy, and that the purchaser at the sale also had notice of the existence of the will. Fraud in the procurement of the order for sale as administrator, and notice on the part of the purchaser, may be available in proper proceedings to set aside such order and sale; but they cannot avail to destroy the judgment of the ordinary and the sale thereunder, upon a mere collateral attack in an ejectment suit by persons claiming as legatees." Citing Davie v. McDaniel, 47 Ga. 195, Bailey v. Ross, 68 Ga. 735, and Medlin & Sundy v. Downing Lumber Co., supra. In Wash v. Dickson, 147 Ga. 540, 94 S.E. 1009, it was held: "A judgment of a court of ordinary granting letters of administration upon an estate, being a judgment of a court of general jurisdiction, cannot be collaterally attacked, unless the record negatives the existence of necessary jurisdictional facts." It was said, in the opinion: "A court of ordinary in the matter of administering estates is a court of general jurisdiction. Tant v. Wigfall, 65 Ga. 412; Barclay v. Kimsey, 72 Ga. 725(1); Jones v. Smith, 120 Ga. 642, 48 S.E. 134. It is to be presumed in favor of one of its judgments that every fact necessary to make it valid and binding was before the court. Jones v. Smith, supra; Stuckey v. Watkins, 112 Ga. 268, 37 S.E. 401, 81 Am.St.Rep. 47(1). Thus, if the record is incomplete, or is merely silent concerning jurisdictional facts, the judgment, by reason of the presumption, will sustain itself against collateral attack by parties or privies on account of an alleged want of jurisdiction." See, also, Copelan v. Kimbrough, 149 Ga. 683, 686, 102 S.E. 162, and cit.

These authorities are applicable to the case under consideration, and to the ruling announced in the first headnote. There is no allegation of failure to comply with any statutory requirement essential to the courts taking jurisdiction to grant administration or orders of sale, as dealt with in Horne v. Rodgers, 113 Ga. 224, 38 S.E. 768, Powell v. Harrison, 180 Ga. 197, 178 S.E. 745, and several cases therein cited, and other similar cases relating to the machinery of the court.

2, 3. The rulings announced in the second and third headnotes do not require elaboration.

Judgment reversed.

All the justices concur, except RUSSELL, C.J., and BELL, J., who dissent.

On Rehearing.

PER CURIAM.

On rehearing the former judgment is adhered to.

RUSSELL, C.J., and BELL, J., dissent.

BELL Justice (dissenting).

According to the allegations, the ordinary appointed the administrator under the following circumstances: A will was on file in the office of the ordinary, as was also an application to probate it. The application, however, had been refused on...