Wash v. Dickson

• Decision Date: 16 January 1918
• Docket Number: 236.
• Citation: 94 S.E. 1009,147 Ga. 540
• Parties: WASH ET AL. v. DICKSON.
• Court: Georgia Supreme Court

94 S.E. 1009

147 Ga. 540

WASH ET AL. v. DICKSON.

No. 236.

Supreme Court of Georgia

January 16, 1918

Syllabus by the Court.

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.

An allegation in a petition for letters of administration that the petitioner "is entitled under the law to be appointed administrator of said estate, being requested so to do by the relatives of said deceased," does not negative the existence of necessary jurisdictional facts.

There was no abuse of discretion in granting an interlocutory injunction, inasmuch as the evidence on the question of possession was in conflict; and the injunction granted was not mandatory in character.

Error from Superior Court, Ben Hill County; D. A. R. Crum, Judge.

Suit for injunction by M. Dickson against James Wash and another. From an amendment making Edd Wash a party defendant, and from the granting of an interlocutory injunction against defendants, they bring error. Affirmed.

H. J Quincey, of Ocilla, Lankford & Moore, of Douglas, and J. W Haygood and Eldridge Cutts, both of Fitzgerald, for plaintiffs in error.

McDonald & Bennett and O. H. Elkins all of Fitzgerald, for defendant in error.

GEORGE J. (after stating the facts as above).

The main contention of the plaintiffs in error is that the judgment of the court of ordinary appointing Kennedy administrator of the estate of William Wash is void, and therefore Dickson's deed is void, and, both being void they can, in a proceeding confessedly collateral, be attacked as void. Incidentally it is said that the Supreme Court in Wash v. Wash, 145 Ga. 405, 89 S.E. 364, declared, in effect, the judgment appointing Kennedy administrator to be void. The necessary effect of the decision referred to will be presently considered.

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. 1 Black on Judgments (2d Ed.) 406, § 271; Medlin v. Downing Lumber Co., 128 Ga. 117, 57 S.E. 232; Riddle v. Shoupe, 147 Ga. 387, 94 S.E. 236. For want of jurisdiction appearing on the face of the record, the judgment may be collaterally attacked. Jones v. Smith, supra. From the foregoing elementary principles deducible from all our decisions it follows that a judgment of a court of ordinary granting letters of administration can be collaterally attacked only where the jurisdiction of the court is negatived by the record.

The petition upon which the administrator was appointed alleged that:

"Petitioner is entitled under the law to administer upon said estate, being requested so to do by the relatives of the deceased."

By this allegation the right of the applicant to administer the estate is claimed, but the averment does not purport to be exhaustive. If so, the averment is that the petitioner is legally entitled to administer the estate because "requested so to do by the relatives of the deceased." Civil Code 1910,§ 3943, provides rules for granting letters of administration. By paragraph 3 under that section, where there are several of the next of kin equally near in degree, "the person selected in writing by a majority of those interested as distributees of the estate and who are capable of expressing a choice, shall be appointed," even though the person selected be a stranger. Mattox v. Embry, 131 Ga. 283, 62 S.E. 202 (2). By paragraph 6 any qualified, disinterested person may be selected to administer the estate by the persons entitled to the estate. The allegation that the applicant had been "requested" to administer the estate "by the relatives" of the intestate is not...