183 Ga. 258 | Ga. | 1936
The court did not err in sustaining the demurrer and dismissing the petition. Regardless of other questions, the plaintiff can not recover unless she can obtain a cancellation of the decree of retraxit as entered in the superior court on July 28, 1930. Code, §§ 3-507, 3-508. If the allegations do not show that she is entitled to this relief, it is quite unnecessary to inquire whether in the absence of such decree the petition states a sufficient cause for cancellation of the settlement receipt and the alleged retraxit as signed by the plaintiff, or of the judgment of the court of ordinary purporting to discharge the guardian. All of the facts stated in the petition, however, should be considered in determining whether the judgment of the superior court may be set aside as prayed. We can not agree that this latter judgment is void and may thus be ignored, in adjudicating the rights of the plaintiff. Compare Snelling v. American Freehold Mortgage Co., 107 Ga. 852 (33 S. E. 634, 73 Am. St. R. 160); Buchan v. Williamson, 131 Ga. 501 (3) (62 S. E. 815). While the petition alleged that the former suit in the superior court was brought by the plaintiff’s husband as next friend, without her knowledge or consent and without her authority, the plaintiff thereafter purported to deal with the action as though she had arrived at her majority and were capable of controlling it. While it is true that the paper signed by her, and made a part of the record, recited that the suit had been filed without authority, it also contained a direction for the entry of a retraxit, which direction amounted on its face to an adoption of the suit for that purpose, as distinguished from a
“All proceedings of every kind in any court of this State, to set aside judgments or decrees of the courts, shall be made within three years from the rendering of said judgments or decrees.” Code, § 3-702. While the judgment here under attack was rendered at a time when the plaintiff was a minor, and the petition alleged that it was obtained by fraud, these facts without more do not authorize its cancellation after a lapse of three years from the date of the judgment and from the plaintiff’s arrival at her majority. In the instant case the plaintiff must not only show an actual liability together with the voidability of the judgment if attacked within such period, but must further allege sufficient cause for avoiding the statute which limits the right to set aside a judgment to a period of three years. “If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of
These principles as to confidential relations and fraudulent concealment are all invoked by the plaintiff in this case; but the allegations contained in her petition do not present sufficient facts to justify their application. The transactions between the plaintiff and her guardian which she now seeks to bring in question all occurred at a time when the plaintiff was more than twenty years
It does not appear that the guardián ever concealed any fact concerning the value of her estate or as to the disposition which he had made of it. While there is some innuendo to the effect that the plaintiff did not know that she could hold the surety liable, there is nothing to show that she was not fully aware of the fact that the guardian had given bond as required by law, with the defendant company as surety. Under a proper construction of the petition, the plaintiff knew that in the proceeding filed by her husband as next friend, in the court of" ordinary, he was represented
The present case differs on its facts from the following among other cases cited for the plaintiff. Short v. Mathis, 107 Ga. 807 (33 S. E. 694); Griffin v. Collins, 122 Ga. 102 (49 S. E. 827); Little v. West, 145 Ga. 563 (89 S. E. 682); Jordan v. Harber, supra; Morris v. Johnstone, supra. In some or all of these cases there was actual concealment of the condition of the estate, and nothing to put the beneficiary on inquiry or to disturb the sense of security arising from the relation of trust and confidence.
Judgment affirmed.