17 S.E.2d 585 | Ga. | 1941
1. An order appointing an administrator de bonis non, showing on its face that it was issued on the same day and was a part of the order removing the administrator, shows that it was issued without citation and notice, and is void for this reason. It may be disregarded by any court where it affects the interest of the parties.
2. The issuance of citation on an application for appointment as administrator de bonis non is a ministerial and not a judicial act of the ordinary. Where there is a clerk of the court of ordinary, it is the duty of the clerk to issue all citations required by law; and where there is no clerk, the ordinary acts as a clerk in issuing such citation. Where an ordinary who has no clerk refuses to perform this ministerial act, the writ of mandamus is available to compel performance on his part. Neither the remedy of appeal nor certiorari, which are available to review judicial decisions of the ordinary, is available to review such ministerial act.
To the petition the defendant demurred on the grounds, that no facts are alleged entitling petitioner to the relief sought; that she has an adequate legal remedy; and that the petition seeks to interfere with the judicial functions of the court of ordinary, in that the failure to act on the part of the ordinary is a judicial decision for which specific legal remedies are available. The defendant's answer admits all averments of fact made in the petition, specifically admitting that the administrator Waldrup was removed as alleged, and that Bailey was appointed on the same day that Waldrup was removed, without citation having been previously issued and published; but the answer denies that citation was required by law, that the appointment of Bailey was void, and that the estate is now unrepresented. The answer states that the estate is represented by Bailey by virtue of his appointment which was made in the same order by which Waldrup was removed, that he has taken the oath and given the bond required, that no proceeding has been instituted to remove him, and that the order removing Waldrup and appointing Bailey was appealed from, and the appeal was dismissed, and there has been no appeal from the decision of the ordinary refusing to issue citation on plaintiff's petition. Exceptions pendente lite were taken to the overruling of the demurrer. The case was heard by the judge on the petition and answer, and he granted mandamus absolute. The defendant excepted, assigning error on the overruling of the demurrer and on the final judgment. *167 The plaintiff in error contends that the judgments complained of are erroneous, for two reasons: (1) J. L. Bailey is the legally appointed and qualified administrator de bonis non of the Maddox estate; and (2) the action of the ordinary in refusing to issue citation and have the same published on the application of petitioner was a judicial decision, and specific procedure is provided for review by appeal or certiorari, and hence mandamus is not an available remedy.
1. "Administration de bonis non is granted upon an estate already partially administered, and from any cause unrepresented." Code, § 113-1209. The necessity for citation in such cases was decided in Rusk v. Hill,
While it is insisted that the order appointing Bailey was reviewed and affirmed in Maddox v. Waldrop,
2. Where application for appointment as administrator de bonis non is made to the court of ordinary, it becomes the duty of the ordinary to issue citation thereon. Code, § 113-1212. This duty is mandatory, and its performance is not left to the discretion of the ordinary. It is not conditioned upon what the ordinary may then think will be his judgment on the merits of the application when he was obtained jurisdiction thereof, by citation and publication, to judicially determine the merits of such application. Issuance of citation and publication is the machinery which the law provides for getting the case before the court for adjudication. In thus executing the command of the statute in a manner specifically prescribed by law the ordinary exercises no discretion, but acts merely in a ministerial, rather than a judicial, capacity.
It is obvious that a mere clerk of the court of ordinary is not entrusted by law with judicial functions. His acts are all ministerial as distinguished from judicial. Ordinaries are by virtue of their offices clerks of their own courts, but they may at their own expense employ clerks. Code, § 24-1801; Smith v.Stapler,
But counsel for the ordinary in the present case cite, in addition to the statutes providing for appeal and certiorari, the following cases, which it is contended show that mandamus is not available as a remedy to the defendant in error: Barksdale v.Cobb,
The petition stated a cause of action, and the court did not err in overruling the general demurrer. The admitted facts entitled the petitioner to the relief sought.
Judgment affirmed. All the Justices concur.