15 S.E.2d 861 | Ga. | 1941
1. The court of ordinary is a court of general jurisdiction; and unless the want of jurisdiction appears on the face of the record, its judgments can not be collaterally attacked for fraud.
2. Such an attack on a judgment granting administration, when the want of jurisdiction does not so appear, the attack being contained in a petition seeking only a recovery of an undivided interest in land and mesne profits, and the only prayer, aside from one for process, being such as is appropriate for such recovery, and the personal representative of the estate not being a party to such suit, is a collateral attack.
3. The demurrer of the defendant to the petition as amended should have been sustained and the action dismissed.
The defendant filed a plea contending that DeKalb superior court was without equitable jurisdiction of his person or property, he being a resident of Fulton County. He demurred to the petition on general grounds.
The plaintiffs amended, striking the allegations in paragraphs 16 to 21 of the petition, striking all their prayers except that for process and service, and alleging that in April, 1926, the defendant procured a loan of money from a named bank, and on September 20, 1926, procured another loan from the same bank, and in each case executed a conveyance of the Fulton County lands of the estate of Mrs. Pair to secure the payment of said loans; that in March, 1928, he sold the lands to a purchaser who as part of the consideration assumed payment of said loans; and that the defendant's procuring these loans and selling the realty to pay them constituted merely a part of his scheme and device to obtain the entire property of the estate, and accounted for his procuring the appointment of Matthews as administrator, to whom he made the misrepresentation that he was the sole heir of Mrs. Pair. The amendment showed that on September 27, 1926, the administrator, on his application, was discharged. The plaintiffs alleged, that, being nonresidents of the State, they had not kept up with the affairs of Mrs. Pair, and did not know that she left any estate, or that an administrator had been appointed, until in the fall of 1940; that the defendant did notify one of them, and through him the others, of the death of Mrs. Pair, but concealed from them the fact that she *616 left an estate, and the fact that he had procured the appointment of Matthews as administrator, and concealed from them his false representation to the administrator that he was the sole heir; and that he has received the rents and profits from the lands of Mrs. Pair's estate, of the value of several hundred dollars per year. After making the foregoing allegations of fraud perpetrated upon them, the plaintiffs prayed that the suit proceed as one to recover the undivided interest of each of them in the "land in controversy, fully set forth and stated in the petition, together with mesne profits."
The defendant renewed his plea to the jurisdiction, and his general demurrer to the petition as amended. The judge overruled the demurrer, and the defendant excepted.
1. The original petition was undoubtedly subject to the attack made upon it in so far as jurisdiction was concerned; for while land in DeKalb County was involved, it was not, under our decisions, a case respecting title to land, but an equity case within the meaning of par. 3, sec. 16, art. 6 of the constitution (Code, § 2-4303). Clayton v. Stetson,
Wells v. Pridgen,
We have examined with care the cases cited on the supplemental brief for defendants in error, to wit: Portman v. Mobley,
In view of the diversity of opinion among the courts of other jurisdictions as to what constitutes a collateral attack, and the difficulty this court has had in applying the principle of precedents in our own State, it might be well if this court could announce some comprehensive rule on that subject; but in every instance we must limit our rulings to the case before us. We content ourselves therefore with the pronouncement that such an attack as shown by this record, its character being that recited in the second headnote, is a collateral attack, and not a direct attack. The judge should have sustained the demurrer to the petition as amended, on the ground that on the face of their pleadings the plaintiffs showed no right of recovery, for that they had no case so long as the judgment *620 of the court of ordinary stood unimpeached; and it could not be attacked in the manner sought.
Judgment reversed. All the Justices concur.