Medlin & Sundy v. Downing Lumber Co.

128 Ga. 115 | Ga. | 1907

Evans, J.

(After stating the facts). The court of ordinary is a court of general jurisdiction, and unless want of jurisdiction appears on the face of the record, its judgment can not be collaterally attacked. Jones v. Smith, 120 Ga. 642. But where the want of jurisdiction appears on the face of the record, its judgment, like that of any other court of general jurisdiction, is void, and subject to attack at any time-by any one whose rights are sought to be affected thereby. Fussell v. Dennard, 118 Ga. 270. The contention of the plaintiff in error is that the application for administration, in each case, shows affirmatively upon its face that the applicant had no right to apply for administration, and consequently that the court of ordinary was without jurisdiction to grant administration upon the application of one unauthorized by law to apply for the same. In Towner v. Griffin, 115 Ga. 965, it was held that an application for letters of administration, which fails to allege that the applicant is an heir at law of decedent, .or a creditor of the estate, or any other reason which under the law would entitle him to the administration, should be dismissed upon motion made upon that ground by caveators appearing at the hearing who are heirs at law of decedent. The conclusion sought to be deduced from the principle there decided is that only those persons referred to have any right to procure an administration on the estate of a decedent, and that where it affirmatively appears that the applicant is not included in any of these classes, the court is without jurisdiction to issue such letters. Much could be said in support of the proposition that the grant of administration upon the application of one who describes himself as having no interest in the estate, and as having no right to have letters issue to him, is void for want of jurisdiction in the court to grant to such applicant letters of administration. Indeed, we are inclined to the opinion that the granting of administration upon such an application would be void for want of jurisdiction appearing on the face of the record. “A judgment rendered by a court of competent jurisdiction in- a case brought1 before it, however erroneously that jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it is another and different thing. In the one case it may be erroneous. In the other it is void.” Bailey on Jurisdiction, §7. In the present case it affirmatively appears from each of the applications for administration that the applicant is one of the next of kin of the decedent. Letters of administration may be granted, to the next of kin at the time of the death of the deceased, according to the law of relationship and distribution.- Civil Code, §3366.

. But the plaintiff in error insists that the recital in each of the applications, that the applicant is “one of the next of kin of the deceased,” means that she was such at the time of the application, .and not at the time of the decedent’s death, and that this inference is aided by the fact that in 'one instance sixty-eight years intervened between the death of the decedent and the application for administration, as affirmatively disclosed therein. To this we can not agree. The representation of the applicant that she was one of the next of kin of the deceased does not exclude the inference that she was one of his next of kin at the time of his death. The lapse of sixty-eight years between the death of the intestate, and the application for administration on his estate is not sufficiently long for the court to hold, as a matter of law, that it was impossible for the applicant to be in life when the intestate died. We have only to look about, to discover acquaintances who have reached thé age of three score and ten. The pleadings do not show lack of jurisdiction in the court; and every fact necessary to make the judgment valid and binding upon the parties thereto will be presumed in its favor. Stuckey v. Watkins, 112 Ga. 268. We therefore conclude that the judgment directing letters of administration to issue is not void and subject to collateral attack. In the agreed statement of facts it was a'dmitted that the plaintiff was entitled to a temporary injunction unless the granting of these administrations was void and could be collaterally attacked. At the interlocutory hearing the court adjudged that these administrations were not void and subject to such attack; and this judgment is

Affirmed.

Fish, O. J., absent. . The other Justices concur.