Sundy v. Downing Lumber Co

• Decision Date: 12 April 1907
• Court: Georgia Supreme Court
• Parties: MEDLIN & SUNDY v. DOWNING LUMBER CO.

57 S.E. 232

128 Ga. 115

MEDLIN & SUNDY

v.DOWNING LUMBER CO.

Supreme Court of Georgia.

April 12, 1907.

3. Judgments — Collateral Attack — Jurisdiction.

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.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 910, 935.]

2. Executors and Administrators —Grant of Letters—Jurisdiction.

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 is 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."

(Syllabus by the Court.)

Error from Superior Court, Charlton County; T. A. Parker, Judge.

Action by the Downing Lumber Company against Medlin & Sundy. Judgment for plaintiff. Defendants bring error. Affirmed.

The Downing Lumber Company, alleging itself to be the owner of two described lots of land, brought its action against Medlin & Sundy, to enjoin an alleged trespass, and to recover damages therefor. At the interlocutory hearing, it was agreed between counsel for the parties, for the purpose of that hearing, that the two lots of land were granted by the state, respectively, to Zachariah Melton on September 1, 1810. and to David Rogers on September 25, 1805; and that Melton died about the year 1870, and Rogers in 1838. On June 4, 1906, Mrs. Annie Melton was appointed administratrix upon the estate of Zachariah Melton, by the ordinary of Twiggs county; and on August 6, 1906. Mrs. S. M. Anthony was appointed administratrix on the estate of David Rogers by the ordinary of Oglethorpe county. Copies of the application for letters of administration by Mrs. Melton and Mrs. Anthony, upon which due and legal advertisement and all other legal formalities were had, were attached; and it was further agreed that Mrs Melton and Mrs. Anthony, respectively, "after being thereunto regularly authorized, lonveyed in their respective capacity as administratrix the said two lots 5 and 6, respectively, to the * * * Downing Lumber Company." It was admitted that the defendant intends to occupy the land, and to cut and utilize all the timber thereon; and that the plaintiff was entitled to a temporary injunction unless the grant of administration to Mrs. Melton and Mrs. Anthony "is void, and subject to collateral attack" for the following reasons: First, that neither petition for administration alleged any facts conferring jurisdiction on the court of ordinary of the respective counties to make either appointment; second, because it appears from the respective applications that neither of the respective courts of ordinary had jurisdiction to appoint either of said applicants administratrix; third, because it appears from each of the applications that administration was unnecessary upon either estate; and, fourth, because neither petition showed any right on the part of either applicant to be appointed administratrix. The applications for administration were, respectively, as follows: That of Mrs. Annie Melton, addressed to the court of ordinary of Twiggs county, alleged that "Mrs. Annie Melton, a citizen of the United States, residing in said state, respectfully shows that Zachariah Melton, late of Twiggs county, Ga., died intestate about the year 1870, leaving an estate of real and personalty of the probable value of $100. Petitioner further shows that administration on said estate is necessary, for the purpose of distribution of said estate among the heirs of the said Zachariah Melton, deceased. Petitioner is entitled under the law to be appointed administratrix upon said estate; being one of the next of kin of the deceased." Then follows the usual prayer. Mrs. Anthony's application, addressed to the court of ordinary of Oglethorpe county, recites that she, "a citizen of the United States, residing in said state, respectfully shows that ...