172 Ga. 139 | Ga. | 1931
(After stating the foregoing facts.) The defendant filed a motion to dismiss the writ of error, upon the grounds: (1) That no person is named as plaintiff in error, and movant has not by his counsel or himself acknowledged or waived service. (2) (a) He has been handed only one copy of what purports to be a bill of exceptions, without any notice whether he was being served individually, or as coguardian of Mary Dillard Harber Jordan, or coguardian and cotrustee of Henry Harber, and without any effort upon the part of the person delivering him the copy to designate to him in what capacity it was being delivered, (b) The bill of exceptions does not name him as a defendant in error in any of the capacities referred to in sub-paragraph (a). (3) There is no evidence upon the face of the record showing legal service upon Mrs. Marie Gould Mauldin, (a) It does not appear from the bill of exceptions that she
While it is good practice to designate by name plaintiffs in error and defendants in error, so as to identify the capacity in which each party appears, this is not indispensable. The allegations in the pleadings may illustrate and identify the position of every párty. Upon review of a bill of exceptions, the Code, § 6176, provides: “When the record shows clearly who were the parties to the litigation in the court below, and the bill of exceptions shows that all who were interested in sustaining the judgment of the court below have been served, the writ of error shall not be dismissed because the bill of exceptions sets forth the parties differently from the record, or discloses that some party not interested in sustaining the judgment of the court below has not been served. No party shall be considered as interested in the litigation in' the Supreme Court who will not be affected by the judgment to bo .rendered in that particular case, such as sheriffs upon a money rule when the contest is between various claimants of the fund and not between the sheriff and any one of them, or a receiver occupying a similar relation, or a complainant in a bill of interpleader, and other parties occupying similar positions. This recital of instances
When the movant was handed one copy of the bill of exceptions, this was notice to him and service of him in each and all of the capacities in which he was named. We know of no rule of law which requires that the same individual who appears in different capacities, which are fully set forth in the proceeding, must be served with more than one copy. Four copies would not give the movant any information he could not receive from the one copy, and it was not necessary for the person delivering him the copy to designate to him in what capacity it was being delivered.
The certificate of the clerk, which we have quoted, complies with every requirement of the Code, § 6161. It is true, where service of a non-resident is made by publication, that the clerk is required to send a letter as prescribed in section 5557; but section 6161 was designed to be used under conditions different from those provided for the service of a non-resident by publication. It contemplates a case in which the plaintiff in error names as a party defendant one whom the plaintiff in error believes to be a resident of this State at the time the bill of exceptions is presented to the trial judge, but later, after the judge has certified the bill of exceptions, discovers that this party is no longer domiciled in Georgia but has become a non-resident, and has moved to an address where he may be found and served by mail. Section 6161 provides: <eWhenever a bill of exceptions is sued out in the trial court, and is certified and filed in said court, and it appears that a defendant in error is a non-resident of this State, and is not represented by counsel so that he ma}’- be served with a copy of said bill of exceptions, the clerk, upon the request of the counsel suing out said bill of exceptions, shall give notice to the non-resident defendant by mailing a letter addressed to him at his post-office; the notice to contain a statement of the case, that he is a defendant in error therein, that the bill of exceptions has been filed, that it will be forwarded to the Supreme Court, and will be heard in that court at the-term thereof. This notice shall be sufficient to authorize the Supreme Court to hear and determine said case, and
The first question which arises in this case is as to the jurisdiction. It appears that W. Y. Harber is a citizen of Commerce in Jackson County, Georgia, and John J. Iiarber is a citizen of Fulton County. Hall County is the situs of the administration of the estate of G. W. D. Harber, for he resided in that county at the time of his death, and died there. The action is by equitable petition of a ward against two guardians, for an accounting; and incidentally the petition seeks to set aside a decree of another court affecting her, on the ground that the decree was obtained by fraud. The suit was brought in Fulton County against W. Y. and John J. Harber, not only as executors of the will of G. W. D. Harber, but as guardians for petitioner both before and after she reached her majority, and also as trustees for certain estates created by her father’s will, in which she is interested. The Civil Code, § 5527, declares: “All petitions for equitable relief shall be filed in the comity of the residence of one of the defendants against whom a substantial relief is prayed.” Construing this section, it was held in Shropshire v. Rainey, 150 Ga. 566 (104 S. E. 414), that where two executors resided in different counties, the superior court of either county has jurisdiction of an equitable case praying substantial relief against both. So this suit was not demurrable for want of jurisdiction. It was held, in Brown v. Wilcox, 147 Ga. 546 (94 S. E., 993) : “A petition praying for the cancellation of a deed may be brought in the county of the residence of either the grantor or the grantee. If at the time of filing such petition the grantor be dead and there are two qualified executors of his will, who reside in different counties, the petition may be brought against the executors in either county. . . Where in such' a case the petition alleges that the executors refused to execute the will according to its terms, one of them being under the dominating influence of the other, and there is a prayer for the removal of both executors on account of failure to act, and for the appointment of a receiver to take charge of the estate and to execute the will, the superior court of the county of the residence of either
In Giles v. Cook, 146 Ga. 436 (91 S. E. 411), this court held that “A court of equity may set aside a judgment procured by fraud.” “The jurisdiction of courts of equity to vacate judgments obtained by fraud is too well recognized to require discussion. . . Judgments which may be vacated in equity on account of fraud are not confined to judgments rendered by the superior court.” From this it appears that the jurisdiction in equity is determined by the residence of any one defendant against whom substantial relief is prayed; and that where coexecutors reside in different counties, the action may be brought in the county in which either executor resides. Under the ruling last cited, if in obtaining substantial justice it becomes necessary that a judgment obtained in one superior court should be vacated because obtained by fraud, then if one or both of the coexecutors reside in a county different from that in which the original judgment was rendered, the superior court of either of the counties, which has jurisdiction by reason of the residence of a proper defendant (either of the coexecutors), has jurisdiction to set aside such judgment fraudulently obtained in another county: In other words, while ordinarily a judgment rendered in Hall County might be perfectly good — and would be unless successfully attacked upon the ground of fraud, nevertheless the superior court of Fulton County would have jurisdiction if either executor, trustee and guardian reside in that county. This is not a proceeding to arrest or set aside a judgment for defects appearing on the face of the record, but is a suit seeking to set aside the formal judgment as incidental to the relief prayed, which is a general accounting and settlement of all the matters involved which are referred to in the petition. No defects appear on the face of the record in Hall superior court. However, that record does not disclose that W. Y. Harber withheld some $35,000 from the assets of a partnership in which the petitioner is interested, and that lie and John J. Harber had committed other frauds, as
So the real question as to the merits of the demurrer must be determined upon other principles. “A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer.” Blaylock v. Hackel, 164 Ga. 257-258 (5) (138 S. E. 333). As ruled by Mr. Justice Lamar in Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874), following the ruling by Chief Justice Bleckley in Lowe v. Burke, 79 Ga. 164 (3 S. E. 449), “A demurrer going to the whole bill should be overruled if any part of the bill is sustainable.” What Chief Justice Bleckley said in the opinion in the Lowe case is applicable to the case at bar: “Thus, where the bill is good as to account and partition, though it may be bad as to the attack it makes on a judgment lien on the premises, the bill will not be dismissed. We do not enter into the case so far as this judgment lien is concerned; for if that subject-matter ought to be eliminated, the demurrer should have gone to that part of the bill alone, and to the relief sought respecting it. The demurrer being to the
As to the limitations of actions against guardians, the Civil Code of 1910, § 3084, declares: “No final settlement made between the guardian and ward shall bar the ward, at any time within four years thereafter, from calling the guardian to a settlement of his accounts, unless it is made to appear that the same Avas made
In Adams v. Reviere, 59 Ga. 793, it was said: “On a plea by the guardian that she had settled with her ward, the question is not whether the jury believed that the ward had received in the settlement as much as she was entitled to receive from her guardian; but the issue is, was she fully cognizant of the condition of the estate and of its management by her guardian, and did she settle with full knowledge thereof, and without mistake on her part, or imposition or fraud on the part of the guardian; if she did so settle, and at the date of the settlement was of full age, and acted with her eyes open to the facts of the case, she will be concluded by the settlement, though she seeks to open it in less than four years from its date; but if she was ignorant of the facts, or mistaken, or defrauded, she will not be concluded.” In Stidham v. Sims, 74 Ga. 187, it was held: “If, after the ward arrived at full age, the guardian or trustee settled with her and took her receipt .and acquittance from all further liability to her, and if this was done without fraud, she would have to proceed within four years after the Settlement was made to open the'same; otherwise she would be barred under § 1847 of the Code [1910, §-3084], If the settlement took place on account of the fraudulent conduct and misrepresentations of the trustee, whereby the cestui que trust was induced to make it and to give the . . acquittance to her trustee, the statute of limitations would run only from the discovery of the fraud, and in that case it would be ten years.” To the same effect was the ruling in Griffin v. Collins, 122 Ga. 102-109 (49 S. E. 827). In this ease, the alleged check which purported to be a final settlement of the account was dated June 14, 1928, and the suit was brought on May 5, 1930; and it will be noted that the statute
So far as we have examined, the outside authorities concur with the rulings in the cases cited. “When the ward has come of age, he is sui juris and legally competent to adjust his affairs with the guardian. If a settlement of the account is made between them, without fraud or abuse of the guardian’s position over^the ward, and the amount agreed to be due is paid over to the ward, it is a legal discharge of the guardian. But the relation of authority on one side and confidence on the other, which had but just terminated, exposes such settlement to the severest scrutiny of any court which has occasion to pass upon it; and the presumption is against its validity, and it will not be held binding upon the ward unless the evidence affirmatively shows that the ward acted deliberately and upon full information, and that the guardian exercised entire good faith.” 12 R. C. L. 1150 (41). “In a suit to set aside1 a guardian’s final settlement by which' securities were awarded to the ward, based on the fraud of the guardian, a finding that the guardian did not seek to deceive his ward, and that he gave the ward all the information he had regarding the securities, does not defeat the suit, tbAquestion not being whether there was intentional wrong, but whether there was a failure to comply with the law established for the protection of wards, and the ward being entitled to be informed not only of the facts, but of his rights with reference thereto.” Scoville v. Brock, 69 Vt. 449 (65 Atl. 577, 118 Am. St. R. 975). “Where a guardian is the parent of the ward, a transaction between them entered into a few days aítér the ward' has attained full age, and while the relation of guardian and ward continues, which prejudicially affects the interests of the ward, is constructively fraudulent, and the guardian has the burden of proving that the transaction proceeded from the independent and uninfluenced will of the ward.” Baum v. Hartmann, 226 Ill. 160 (80 N. E. 711, 117 Am. St. R. 246). “Equity will not permit transactions between guardian and ward to stand even when they occur after majority, if the intervening period is short, unless the fullest deliberation by the ward and the utmost good faith by the guardian is shown, as the latter’s influence is
“A female ward, on reaching majority, at the request of her father, who was her guardian, and at the instance of one of the sureties on his bond, without any legal advice, or being apprised of the real character of her act, signed a release reciting that the guardian had paid to her the whole amount of her estate, which was not in fact paid. Held, that such release was presumptively fraudulent, and could not constitute a defense to an action on the bond in favor of the guardian or the sureties. . . When a female ward immediately upon coming of age signs a release of her guardian (her own father) and his sureties at their request, and within the time allowed for suit on the bond files a bill in equity to set such release aside on the ground of fraud, her right of action will not be lost by laches, as against the guardian or the sureties, although the bill is not filed until nine years after the execution of the release, and four years after she has been advised of her rights in the premises.” Carter v. Tice, 120 Ill. 277 (11 N. E. 529). “A guardian may acquit himself by an outside informal settlement with his ward, but the' guardian who relies upon such a settlement must clearly show that he made a full disclosure of everything to the ward. . . The presence and assistance of an independent legal adviser, representing the ward, at the time of the settlement between guardian and ward, may, if the facts warrant, remove the imputation of undue influence by the guardian over the ward, but such independent counsel and advice will not relieve the guardian of the necessity of making a full disclosure; and where a guardian settles with his ward and the ward is represented by counsel of his own selection, but the guardian fails to disclose facts
The learned trial judge appears to have been of the opinion that the setting aside of the agreement and the decree were the main objects of the bill, and that sufficient facts were not alleged to authorize the court to entertain the same. Perhaps he was of the opinion that the allegations as to fraud were insufficient. No matter what reasons influenced the court in sustaining the general demurrer, the cause must be remanded for another hearing. Aiid since the case must be tried again, it would appear to be necessary for this court to pass upon the question whether or not the facts alleged are sufficient to set aside the decree and agreement. As a matter of law, the statements of the petition assailed by the demurrer must be conceded not only to be such as that the petitioner can prove them, but conceded to be true. Upon the trial these allegations must be established. “The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party, unmixed with the negligence or fault of the petitioner.” Civil Code (1910), § 4584. “The judgment of a court of competent jurisdiction may be set aside by a decree in chancery, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.” § 5965. In matters of fraud the party aggrieved has the right to go into either a court of equity or law for relief; and having gone into equity, he can' not be sent back to a court of law, although his remedy there may be equally adequate. Griffin v. Sketoe, 30 Ga. 300. “Misrepresentation is one of the grounds on which equitable relief may be invoked in regard to judgments. It has been said that all deceitful practices in depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to the plain rules of .common honesty constitute fraud. By this term is meant fraud perpetrated by some artifice or contrivance of the party or person benefited, whereby in the course of the trial, or in entering judgment, the injured party or the court has been imposed upon or betrayed into inattention and deceived. The rule is that equity will
Judgment reversed.