Tingle v. Harvill

• Decision Date: 19 January 1972
• Docket Number: No. 3,No. 46681,46681,3
• Parties: Mary A. TINGLE v. Gladys G. HARVILL
• Court: Georgia Court of Appeals

Page 536

187 S.E.2d 536

125 Ga.App. 312

Mary A. TINGLE v. Gladys G. HARVILL.

No. 46681.

Court of Appeals of Georgia, Division No. 3.

Jan. 19, 1972.

Syllabus by the Court

1. A motion to disqualify an attorney for comflict of interest which has not been ruled on below cannot be passed on in an interlocutory appeal on another matter.

2. Where the trial judge, after rendering an order, departs from the jurisdiction so as to make it impossible to request of him a timely certificate for immediate appellate review, the request, if timely, may be presented for grant or denial to another judge of the same court having authority to hear emergency matters.

3. Judgments by a court of ordinary ruling on mental competency or incompetency are judicial in nature and appealable.

4. A guardian has standing to appeal an order terminating his ward's incompetency.

CLARK, Judge.

The primary question for resolution by this court in the instant case is one of first impression in Georgia. It involves whether a guardian of the person and property of an incompetent has the right to take an appeal to the superior court from the judgment of the court of ordinary restoring the ward to competency. Before undertaking to decide this problem there are a number of tactical motions that must be considered. A better understanding of these motions can be obtained from a chronological review of the record.

On August 29, 1969, Mary Alice Tingle had been declared incompetent through the court of ordinary which appointed Mrs. Gladys G. Harvill as guardian of her person and property. The ward possessed considerable realty. Prior to her incompetency Mary Alice Tingle had filed a suit in the Superior Court of Fulton County against Ben F. Tingle, III, Maynard D. Tingle and others to set aside certain deeds from her to property located in DeKalb and Clayton Counties, Georgia, and in Walker County, Alabama, upon the grounds that said deeds were procured by fraud, duress, undue influence, etc. The guardian was substituted as a party plaintiff in these proceedings and in February, 1971 obtained a judgment setting aside said deeds. That case went to the Supreme Court and was affirmed. Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539. That action is of interest in the case sub judice because a motion was filed first in the court of ordinary and then again in the superior court upon the appeal by the guardian to disqualify the attorneys representing Mary Alice Tingle in the instant action by reason of their having served as lawyers for Ben F. Tingle, III in the previous Superior Court equity case.

On February 25, 1971, Mary Alice Tingle filed her 'Petition for restoration to mental health' in the Court of Ordinary of Fulton County. Because of consanguineous relationship to the guardian, the Ordinary, Eugene Gunby, declared himself disqualified and appointed Thomas L. Camp as acting Ordinary. Petitioner pleaded in paragraph 5 thereof that her 'representative and nearest adult relatives residing within the State of Georgia' were Mrs. Gladys G. Harvill and three named relatives. Acting Ordinary Camp assigned a hearing on this petition for March 9, 1971 with service being made upon Mrs. Harvill as guardian by mail and upon two of the three relatives, these two relatives entering a written acknowledgment of service with an express waiver. The court's rule nisi met the statutory requirements of Code Ann. § 88-507.3 by providing for notice to 'Mrs. Gladys G. Harvill, Guardian of Mary Alice Tingle, and to Ben F. Tingle, Jr. and Maynard D. Tingle as the two representatives of Mary Alice Tingle.' In further conformance with said statutory requirements codified in said § 88-507.3 the acting ordinary issued a commission on March 2, 1971 to two named physicians and a named attorney. This commission made a report which was not dated stating: 'We find the said Mary Alice Tingle not to be a mentally ill person and, therefore, capable of managing her affairs.' Though not dated, it apparently occurred on March 9th, as the three members of the commission took their oaths that date before the ordinary and the orders of court are dated March 9, 1971.

Prior to the commencement of the hearing the guardian had filed a motion in the court of ordinary seeking to disqualify attorney William G. McRae from appearing as counsel for Mary Alice Tingle, alleging that the interests of the two Tingle representatives were inimical and adverse to those of Mary Alice Tingle in that Mr. McRae had appeared as counsel for them in the Superior Court of Fulton County equity proceedings earlier referred to herein. Acting Ordinary Camp entered an order dated March 9, 1971, overruling this motion to disqualify attorney McRae. The guardian also filed a written formal pleading designated 'Objection' averring the ward was still incompetent. The ward did not oppose the filing of this caveat.

On March 9, 1971 the acting ordinary and judge of the court of ordinary entered a judgment declaring Mary Alice Tingle competent and directed the guardian to deliver over to the ward all assets and to make a final accounting. On the next day the guardian filed her appeal to the Superior Court of Fulton County.

In behalf of appellee a motion was then filed in the superior court to dismiss the appeal on the ground that the superior court 'does not have jurisdiction to entertain such appeal for the reason that the law of Georgia does not authorize an appeal by a guardian alone from an order of the Ordinary of Fulton County restoring a ward to mental capacity and directing the guardian to deliver over to the ward the property of the ward in the hands of the guardian.'

It is appropriate at this stage in this chronology to point out this appellate court's disagreement with the contention made in the briefs in behalf of Mary Alice Tingle that the initial appeal to the superior court was limited to that judgment which overruled the guardian's motion to disqualify William G. McRae as attorney and, therefore, this court has no right to pass on this case because the other judgment restoring the ward to competency is effective. Although two orders were entered on March 9, 1971, by the acting ordinary, one dealing with the restoration to competency and the other on the motion to disqualify the attorney, it is clear that the instant appeal arises from the rendition on the judgment for restoration and not on the order overruling the motion to disqualify the attorney. This was expressly recognized by the attorney for Mary Alice Tingle in the specific language of his motion that was filed in the superior court to dismiss the appeal by the guardian when he based his dismissal motion 'upon the ground that this court does not have jurisdiction to entertain such appeal for the reason that the law of Georgia does not authorize an appeal by a guardian alone from an order of the Ordinary of Fulton County restoring a ward to mental capacity and directing the guardian to deliver over to the ward the property of the ward in the hands of the guardian.' The court below acted on this motion and the case comes to this court upon the trial court's ruling on this motion dealing with a guardian's right to appeal in such situation.

In the superior court the guardian again filed a motion to disqualify 'William G. McRae from appearing as counsel for Mary Alice Tingle upon this appeal, to disregard all pleadings filed by him herein, to set again all action taken by the court thereon and to set aside the March, 1971, judgment of the acting ordinary which restored Mary Alice Tingle to mental competency and directed her guardian to surrender her property to her.' The grounds were similar to those argued in the court of ordinary, being based upon the allegedly adverse interests arising from the equity action in the Superior Court of Fulton County that has since been decided by the Supreme Court of Georgia.

Both the appellee's motion to dismiss the appellant's appeal from the order of restoration and the motion by appellant to disqualify the attorney were decided by separate orders on July 1, 1971 entered by Judge Sam Phillips McKenzie.

William G. McRae, Atlanta, for appellant.

Ross Arnold, William H. Cate, Atlanta, for appellee.

1. In the order dealing with the disqualification motion it is stated that 'the court having ruled that the motion to dismiss the appeal, as filed by the appellee, be overruled and that the appeal proceed to trial before a jury, therefore, denies the motion and leaves to the trial judge who presides over the trial of this case the question of whether said attorney should be disqualified from proceeding with his representation of the appellee.' (Emphasis supplied).

In view of the terms of this order dealing with the question of disqualification, it would be inappropriate for this court to deal with this motion at this time. It is solely interim and must be decided hereafter upon the evidence relevant thereto by the judge presiding over the trial. Nevertheless, we are constrained to state that even if the trial judge rules the attorney should be disqualified, that the remainder of the motion to strike all pleadings filed by him should be disregarded because it would be manifestly wrong for a party to be denied her day in court because of disqualification of her lawyer. (We emphasize we are not expressing any opinion as to the propriety of Mr. McRae representing Mary Alice Tingle as this presently is not before this court and has not yet been passed upon as is shown by the portion of the order we have emphasized.)

2. Thereupon, on July 9, 1971 Mary Alice Tingle, through her attorney of record, filed an application for a certificate for immediate appeal. After reciting the facts as herein chronologically reported the petition recites that the order of Judge McKenzie dated July 1st was filed with the clerk of the superior court on July 2nd with copies being mailed in an envelope...