42 S.E. 555 | N.C. | 1902
This is an appeal from an injunction to the hearing, restraining the widow and children of M. Q. Coleman from converting to their own use or removing from the State the assets of the estate of D. K. Coleman, which, it is alleged, are in their possession, and the appointment of a receiver thereof. It appears that D. K. Coleman died, domiciled in Ware County, Georgia, in January, 1895, leaving as his only distributees and heirs at law the plaintiffs and defendants, or those under (126) whom they claim. M. Q. Coleman was, in March, 1895, appointed administrator in Georgia, took into his custody the estate, which the plaintiffs herein allege was worth more than $100,000, and in October, 1895, he obtained from the ordinary an order discharging him in full settlement. M. K. Coleman died in May, 1897, and his wife administered on the estate and received a similar order of discharge in June, 1900. The plaintiffs allege in full detail, and duly itemized and specified many and sundry fraudulent acts of said M. Q. Coleman, by which he converted to his own use the great bulk of the assets of D. K. Coleman; and, further, "that on 7 October, 1895, upon the fraudulent concealment from the Court of Ordinary, in the county of Ware, of the acts hereinbefore set out, without any personal service upon these plaintiffs, and in their absence, and without any of them being represented by any attorney, and without their knowledge of the fraudulent representations made by the said M. Q. Coleman upon his application for discharge, or of the fraudulent practices of which the said M. Q. Coleman had been guilty, as hereinbefore set out, he was granted letters of dismissal as administrator upon said estate by the Court of Ordinary of the county of Ware." The plaintiffs further allege that the false and fraudulent representations by which said M. Q. Coleman procured from them receipts for their respective shares of this estate, and their ignorance of all above-recited representations and acts till a short time before instituting this action, that the defendant Penelope Coleman has removed with her children to this State, and they have brought with them money, goods and effects of M. Q. Coleman, duly itemized, making a total of $65,689, and they allege that "all or a greater part *95 of this amount came from the estate of D. K. Coleman, the same being the proceeds of the property, goods and effects belonging to the estate of D. K. Coleman, fraudulently converted by his administrator aforesaid"; and it is further alleged (127) that the defendants are converting said property to their own use, and threatening to remove the same from the State, and "unless restrained from doing so, will conceal and dispose of all the residue in their hands, so as to prevent any recovery of any part thereof by the plaintiffs in this action." The allegations are full and specific, and are sustained by affidavits and denied by counter-affidavits.
It is clearly a case where the restraining order should be continued till the hearing, when the truth of the disputed matters of fact may be legally and properly determined, unless the defendants are protected from investigation by the order of the ordinary in Georgia discharging M. Q. Coleman from responsibility, and that is the only point before us. The order discharging the administratrix of M. Q. Coleman cuts no figure, for there is no allegation that she did not administer honestly; and if the assets which came to her hands were really the property of D. K. Coleman, fraudulently and wrongfully converted by M. Q. Coleman, the plaintiffs will not be estopped by any administration thereupon by his widow.
As to the discharge of the ordinary in Georgia of M. Q. Coleman the defendants rely upon the provision in the Constitution of the United States, Art. IV, sec. 1, "That full faith and credit shall be given in each State to the . . . judicial proceedings of every other State." It is well settled that subject only to the inquiry as to the jurisdiction of the court rendering the judgment and impeachment for fraud (Simmons v. Saul,
If the allegation of fraud practiced is proved, such order is "void, and can be attacked in any court and by anybody; (129) it is a mere nullity, and may be so held in any court." It may be noted here that the above sections are quoted by Chief Justice Simmons as numbered in the Georgia Code of 1882, sections 2608, 3828 and 3594. These sections are retained, without alternation, in the Georgia Code of 1895, except that these sections are numbered respectively 3511, 5373 and 5369.
The defendants contend, however, that the validity of this very order was questioned and sustained in Coleman v. Coleman,
The parties and the property having been removed from Georgia, there is no opportunity to get jurisdiction to move to set aside the judgment in that State. Jurisdiction can be had of both the property and person here, and under the Georgia statute, if the allegations of the complaint are established, the so-called judgment in that State is a mere nullity and can be so treated in any court. It cannot have greater sanctity and force here than in the State where rendered. *97
If the allegations are not established judgment will go against the plaintiffs, and the restraining order and receiver will be discharged. If the allegations are established on the trial the fund may be paid over to an administrator of D. K. Coleman, who can be appointed in this State when assets of his are found here (Morefield v. Harris,
In continuing the restraining order and receiver to the hearing there was
No error.
Cited: Levin v. Gladstein,
(130)