58 Ga. App. 824 | Ga. Ct. App. | 1938
Miss Ruth Campbell, a minor, by Herbert Campbell as next friend, brought suit against Atlanta Coach Company for personal injuries sustained by her while riding as a passenger on a school bus owned and operated by Atlanta Coach Company. Her guardian was not a party thereto. The defendant pleaded that Mrs. R. H. Campbell, who was the natural guardian of her daughter and who had been appointed guardian of her property, had compromised the matter for the ward as a doubtful claim;, and had given her written receipt and release for the amount paid as a compromise.
2. Under the common law a guardian, in the absence of any statutory restrictions, has authority to compromise the claim existing in favor of his ward. 28 C. J. 1123, 1124; 12 R. C. L. 1130; Grievance Committee v. Ennis, 84 Conn. 594 (80 Atl. 767). The Code, § 49-219, which deals with compromising “claims” of the ward by the guardian, very cautiously refrains from restricting this authority relative to “contested or doubtful claims” as it existed under the common law. However, the Code, § 49-221, deals with the question of when a guardian may compromise the “debts” of his ward, and unmistakably restricts the authority of the guardian to compromise his ward’s debts by requiring that the ordinary shall first make an order directing the same.
3. Thus the rule, as it now exists with reference to the compromising of a “claim” under the Code, § 49-219, is that, when a compromise settlement of a doubtful “claim” for the ward is made by the guardian, such settlement is conclusive until it is set
4. Where the application-is for the appointment of a guardian of a minor child under fourteen years of age, other than the child of the applicant, it is necessary for citation to issue. Code, § 49-112. However, in order for the mother, the natural guardian, to also be appointed the guardian of her daughter’s property, a citation is unnecessary (Beard v. Dean, 64 Ga. 258; N. Y. Life Ins. Co. v. Gilmore, 171 Ga. 894, 902, 157 S. E. 188); and the proceedings need not have necessarily been made returnable to the first Monday in December, 1933 (this being the first day of the December term of the court of ordinary), but her application may be filed at a later day during the term and heard by the ordinary on that day or set for a hearing on a subsequent day during the same term. Of course the judgment appointing the guardian must be at the regular term. Code, § 24-2104.
5. Where it appears “in the record that the judgment from which an appeal was taken in this case was rendered on a day later than the first Monday in the month, the court of ordinary being a court of general jurisdiction, it will be presumed, in the absence of anything to the contrary, that the term of court was lawfully in session on the day judgment was rendered.” Wright v. Clark, 139 Ga. 34 (76 S. E. 565). “The rules prescribed by the statute regulating the mode of doing business by the Courts of Ordinary, ought always to be conformed to, and if they be not conformed to, the judgments are irregular, but they are not for that reason void. An irregular judgment can not be attacked for that reason before an
6. The Code, § 24-2101, declares: “The courts of ordinary shall be held at the place prescribed for the superior court or in the office of the ordinary in each county, by the ordinary thereof, on the first Monday in each month, and continue in session from day to day as the business of the court may require. No case returnable to the first Monday is to be tried during said term, that is not called on that day and regularly set for a hearing on said day, or at a later date.” (Italics ours.) The plaintiff in error contends that the record and the judgment of the court of ordinary show on their face that the judgment is void, in that the application to the ordinary for permission to compromise the “claim” and the order granting the same were filed during the term and subsequent to the first day thereof, to wit: December 19, 1933, and thus of necessity could not have been returnable to the first Monday in December, and on that day called and set for a hearing on a later date. In the Code, § 24-2105, which fixes the procedure in the court of ordinary, it is said: “Every application made to the ordinary for the granting of any order shall be by petition in writing, stating the ground of such application and the order sought. If notice of such application, other than by published citation, is necessary under the law or in the judgment of the ordinary, he shall cause a copy of such application, together with a notice of the time of hearing, to be served by the sheriff, or some other lawful officer, upon the party or parties to be notified, at least ten days before the hearing. . . ” In the procedure for obtaining permission of the ordinary to compromise the “claim” of the ward, who was over
7. Even if the record shows that the proceeding to have the natural guardian also appointed guardian of the ward’s property was begun and concluded on December 19, 1933, and subsequently, on the same date, a proceeding to compromise a doubtful claim was filed, and an order or judgment allowing the compromise was also made on that date, and even if in the present suit, in which the guardian was not a party, it were permissible to attack the guardian’s right to compromise his ward’s doubtful claim, this, without more, would not authorize a finding of fraud on the part of the guardian.
8. If it were unnecessary for the guardian io apply to the ordinary for an order to compromise his ward’s “doubtful claim,” and yet out of an abundance of what he deemed precaution ho did so, the granting of such an order, whether regular, irregular, or void, would not be harmful to the plaintiff in error.
9. The case of Carroll v. Atlantic Steel Company, 151 Ga. 378 (106 S. E. 908), relied upon by plaintiff in error, was a direct equitable proceeding to set aside a compromise by the guardian of a ward of a doubtful claim. In this case, it seems to us, the court emphasized the fact that the settlement was a bar to the infant’s recovery until it was set aside by direct proceeding, because the court therein said: “Where the proceedings in court are merely formal and are instituted and carried out in order to give an apparent sanction to the settlement, and there is no judicial investigation of the facts upon which the right or extent of the recovery of damages by a minor is based, such a judgment entered in pursuance of the agreement and by consent merely, is only colorable
10. Applying the foregoing rulings to the facts in the present case, the judge did not err in directing the verdict in favor of the defendant.
Judgment affirmed.