185 Ga. 857 | Ga. | 1938
Lead Opinion
Counsel for the plaintiff insists that the suit can be maintained on two grounds: First, that this is a proceeding in equity seeking relief from void processes issued by the ordinary as ex-officio clerk of the court of ordinary, for cancellation of void process and fi. fa., and for an injunction against further procedure thereon by such ex-officio clerk. Second, the petition seeks a settlement in a court of equity under authority of the Code, § 113-2203, which provides that “A court of equity shall have concurrent juris
In Walton v. Reid, 148 Ga. 176, 179 (96 S. E. 214), Hill, Justice, said: “As a general rule, equity will not interfere with the regular administration of estates. It is only in certain cases specified in the Civil Code [1910], § 4596” (1933, § 37-403). In McKinney v. Powell, 149 Ga. 422 (100 S. E. 375), in delivering the opinion of the court sustaining a demurrer to a petition filed by an administrator seeking the interposition of a court of equity in the management of an estate, Beck, Presiding Justice, said: “None of the questions raised are of such character as to render them peculiarly subjects of equity jurisdiction, but are all questions cognizable in a court of law and in the court of ordinary, which first had jurisdiction of the issues involved in this case.” In Evans v. Pennington, 177 Ga. 56 (169 S. E. 349), parties claiming an interest in an estate sought by a suit in equity to require an accounting and settlement of an executrix, and this court in affirming the sustaining of a general demurrer to the petition, said (Bell, Justice, delivering the opinion) that “the petition should not be retained by a court of equity merely to require an accounting and settlement as to this land, when such relief may be had in the court of ordinary.” The case before us is one in which the administratrix herself prays “that a court of equity take jurisdiction over the settlement of accounts of your petitioner as administratrix of said estate,” and names the heirs at law of her intestate as defendants, as well as the ordinary. The Code, § 37-403, declares: “Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate
The plaintiff in her petition charges the ordinary with fraud and collusion, and an attempt to make the estate pay him, for his own personal use, a cost bill incurred on account of his own void and illegal acts, and that the issuance of the rule nisi is an attempt illegally and fraudulently to preclude the petitioner from protecting herself as the legal representative of her deceased mother’s estate. She insists that these allegations take her case out of the, general rule, and make it the duty of a court of equity to allow her to settle her accounts outside the court of ordinary, and to
Nor, for similar reasons, can the petition be retained on the first ground urged, to wit, the prayer for cancellation of the process alleged to be void, the fi. fa. alleged to be illegal, and for an injunction against further like procedure. Eor every one of the wrongs alleged by her, there is available to her a remedy which the law considers adequate and complete. There is no equity in the petition, and the judgment sustaining the general demurrer is
Affirmed,
Concurrence Opinion
concurring specially. I agree to the conclu
Rehearing
ON REHEARING.
The views of the writer on rehearing, concurred in by Justices Bell and Jenkins, are as follows:
Counsel for the plaintiff insists that the decision in Ben Hill County v. Massachusetts Bonding & Insurance Co., 144 Ca. 325 (87 S. E. 15), holds the contrary to what has been ruled in the instant case. There the execution was against the sheriff, and the company as his surety. Application was made by plaintiff in fi. fa. to the judge of the superior court for the appointment of a receiver to take charge of a sufficient amount of the funds which the company had on deposit with the treasurer of the State, to satisfy the execution. No previous levy of the execution was made on the property of the sheriff or his surety. The sheriff denied that he owed the county anything. This court held that since an affidavit of illegality will not lie until there has been a levy on property, the surety company had no legal remedy, and affirmed a judgment which enjoined the county from proceeding further with the receivership, and held that the facts furnished a basis for an equitable proceeding in which the rights of all the parties could be settled. In that case the equitable relief was granted because the county through a receiver was about to sell and apply to the satisfaction of its execution property of the surety. The threatened injury there was that its property would be sold. In such a situation the law afforded no remedy at all to the surety, unless in equity. In the instant ease there is no threat to apply any prop
It was urged in the motion that equity had jurisdiction in order to have expunged from the records of the court of ordinary all of the proceedings in reference to the attachment for contempt. That a court of equity has broad powers must be conceded. In many cases it may restrain, and in many others it may compel; but it is asking too much of it to seek the obliteration of the records of a court of record. There is one notable instance in Georgia where the General Assembly expunged a portion of its own records. Marbury and Crawford’s Digest, 573, 780, sec. 2. The Senate of the United States, on March 10, 1837, ordered expunged from its own records the resolutions of censure adopted by that body on March 28, 1834, in relation to the conduct of Andrew Jackson (Thirty Years in the U. S. Senate, by Thomas H. Benton, 528, 730); but they are far from being judicial precedents for the relief here sought. The law requires the ordinary as ex-officio clerk to keep a record of his acts. It would be an usurpation of power for a court of equity to order him to expunge that which the law requires him to preserve, whether the order as passed was legal or illegal.
However, on rehearing the court stands evenly divided as to whether the former judgment of affirmance should be adhered to, or whether it should be vacated and the judgment of the trial court reversed. Bussell, C. J., Atkinson, P. J., and Hutcheson, J., favor a reversal. Justices Bell, Jenkins, and Grice are of a contrary opinion. The judgment of affirmance is therefore adhered to by operation of law.
Dissenting Opinion
Having dissented quoties toties from tbe original decision affirming the judgment of the lower court, I necessarily favored the grant of the motion for a rehearing, and now oppose adherence to the original judgment.