166 Ga. 445 | Ga. | 1928
As alleged in the first paragraph of the petition in this case, “Miss Jimmie P. Gray is an invalid and non compos mentis, and thereby incapacitated to look after, manage, and attend to her business affairs.” So H. W. Gray brought the petition as her next friend, alleging that the “ Georgia Loan and Trust Company is a foreign or non-resident corporation having an office and place of business in the City of Macon, Bibb County, Georgia,” and that W. I. Daughtry, the sheriff of Cook County, Georgia, is a resident of the county in which the petition was filed; and these parties are named as the defendants. According to the allegations of the petition Miss Gray owns two tracts of land in the towm of Adel, Cook County, Georgia, the one described as the north half of lot number 3 in block number 3, fronting 25 feet on Railroad Avenue and running back 100 feet to an alley; and the other described as the south half of lot number six in block number four in said town, fronting to 100 feet on Hutchinson Avenue and extending back 220 feet to Parrish Avemie. Miss Gray borrowed from the Georgia Loan and Trust Co., through its attorney at law and agent, R. A. Hendricks, $2000 and $1000, giving her promissory notes for these sums with seven per cent, interest, and securing the loan by deeds to the lots just mentioned. The company, through its agent Hendricks, advertised each of these lots and undertook to sell them; and on November 10, 1922, the court, at the instance of Miss Gray, granted an order enjoining the company or any one acting for it from selling the property until further order. This order was served upon Hendricks, who, regardless of it, on November 13, 1922, offered for sale the lot number 3 in block 3, received bids, and purported to sell it to H. L. Tillman for $2775, and on the same day executed to him a deed -which has been recorded. In November, 1923, the defendant company, through Hendricks, advertised for sale the south half of lot number 6 in block 4; and notwithstanding the superior court granted an order on December 23, 1923, restraining the company and its agents from selling said land, Hendricks received bids and purported to sell said lot to the defendant company for the sum of $1135; and on December 7, 1923, the company executed a deed purporting to convey to itself the lot so sold. It is alleged that both of these deeds are void, for
The defendant company filed an answer subject to its demurrer, as well as a special plea to the jurisdiction. The petitioner by
The bill of exceptions challenges the correctness of the trial court’s ruling in dismissing the petition upon demurrer. The 4th and 6th grounds of the demurrer are: (4) “Because it appears . . that the superior court of Cook County is without jurisdiction to entertain the [petition], in that it appears that W. I. Daughtry, sheriff, is a resident of Cook County, and this defendant is a corporation with its principal place of business in Bibb County, Georgia, and that no substantial relief is prayed against any defendant whatever, save and except the defendant, the Georgia Loan and Trust Company.” (6) “It appears from the petition that the plaintifi: was lacking in diligence in all the cases referred to, and that the defendant was guilty of no fraud or wrongdoing; and because no specific act of fraud or wrongdoing is alleged or set forth in the petition.” The first question presented is whether under the allegations of the petition the fact that the Georgia Loan and Trust Company is a non-resident corporation having an office and place of business in the County of Bibb precludes suit being brought against it elsewhere than in Bibb County. It is not alleged that the City of Macon, Bibb County, is the location of the principal office of the company or its place of business. The statement is that it is a non-resident foreign corporation which has an office in Macon, Bibb County, Georgia. It does not appear from the petition that the Georgia Loan and Trust Company had any office or agent in Cook County, and the statement that it had an office in Bibb County does not suffice to give jurisdiction to the superior court of the first named county. This court held, in Saffold v. Scottish American Mortgage Co., 98 Ga. 785, 787 (27 S. E. 208),
There is no merit in that portion of the petition in which the verdict and judgment sought to be set aside is referred to, since the petitioner in amending her petition admitted that her attorney consented to the verdict and judgment. This court held, in Foster v. Jones, 23 Ga. 168, that “If one be appointed by the court guardian ad litem of a lunatic, and accepts the trust, a judgment against the lunatic will be good, notwithstanding the guardian fails to act.” See also McMillan v. Hunnicutt, 109 Ga. 699, 702 (35 S. E. 102). Furthermore, Booth having been appointed guardian ad litem, and having accepted the trust and having acted in the case, and judgment having been rendered against him, he would be the proper party to bring a proceeding to set aside the judgment.
It is pointed out by the sixth ground of the demurrer that there is no allegation of fraud in the agreement between the attorney for the guardian ad litem and the attorney for the Georgia Loan and Trust Company. The fact that the lunatic may not have consented to the judgment, or even that she may have given instructions to her attorney that were not acted upon by him, would not avoid the judgment rendered in accordance with the agreement, if she was duly represented by her guardian ad litem. It is not to be pre
To the same effect as the ruling in the Fain case, supra, are the decisions in Gentle v. Atlas Association, 105 Ga. 406 (31 S. E. 544); Lanier v. Nunnally, 128 Ga. 358 (57 S. E. 689); Peterson v. Martin Furniture Co., 144 Ga. 316 (86 S. E. 1099).
The court did not err in sustaining the demurrer and in dismissing the petition.
Judgment affirmed.