225 Ga. 678 | Ga. | 1969
Samuel R. Keith, as guardian of Luther and Ophelia Keith, filed a complaint in equity, pursuant to Code Ann. § 81A-160 (e) (Ga. L. 1966, pp. 609, 662; as amended, Ga. L. 1967, pp. 226, 239, 240) to set aside a default judgment entered on December 29, 1967, against his wards in an action by George N. Byram to recover the amount of his sale commission under an exclusive real estate listing agreement. The complaint alleges that the plaintiff was appointed guardian of both wards following their adjudication as mental incompetents in December of 1968; that during the pendency of the action
1. A judgment rendered against an insane person who has no legal guardian and for whom no guardian ad litem has been appointed for the purpose of appearing for him in that proceeding is voidable, even in a case where the insane person was represented by counsel. Collins v. Collins, 217 Ga. 143, 144 (121 SE2d 18) and cit.
2. The present plaintiff’s action is not barred by his counsel’s failure in the first proceeding to attack the prior judgment on the ground of the Keiths’ incompetency. This ground was not included in their motion to set aside the judgment, the overruling of which was affirmed in Keith v. Byram, 118 Ga. App. 364 (163 SE2d 753), nor could it have been included, since it was not a nonamendable defect “which does appear upon the face of the record or pleadings.” Code Ann. § 81A-160 (d). The present complaint does not affirmatively allege that the mental incompetency was known to counsel at the time he filed his motion to set aside the judgment. “[A] motion to dismiss should not be granted unless the allegations in the complaint disclose with certainty that the plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claim.” Residential Developments, Inc. v. Mann, 225 Ga. 393, 397 (1) (169 SE2d 305) and cit. A showing that their incompetency in fact existed at the time of the entry of
3. The complaint stated a claim against the defendant upon which relief could be granted; therefore, the court erred in its judgment dismissing the action.
Judgment reversed.