76 Ga. 733 | Ga. | 1886
This is a demurrer to a bill in equity brought by plaintiffs ,in error to set aside a judgment of the court of ordinary of the county of Floyd, on the ground that the same was .procured by fraud from the said ordinary ; that the ordinary had no jurisdiction.of the cause, and therefore the judgment was void; and that the complainants in the bill really had never had their day in court on’the trial by reason of said fraud. ■ The demurrer is to the effect that the
The bill alleges that.the complainant is administrator on the estate of James'Morris, and that the defendants in interest are one of the heirs of that estate and her husband ; that in common with the other heirs of the estate, they had sued the administrator (the complainant) in Cobb superior court on his bond, bringing the action against him and his sureties on said bond anterior to the citation for him to be and appear before the ordinary to. answer the citation before him at his court in Eloyd ; that he filed a plea of abatement in the ordinary’s court on the ground that Cobb superior court had acquired jurisdiction and the case was still pending there on the appeal from a verdict in' favor of complainant; that he was present by counsel to verify by proof, and insist on, his said plea, but counsel for- the other side was absent, and the ordinary said he had given him leave of absence to go to New York, and he would inform counsel for complainant when the case would be taken up and heard; that no notice was given to his counsel, but at a subsequent term of the court, when counsel for complainant was absent at Chattooga superior court? the cause was heard, without notice to complainant or his counsel, and his plea overruled, and judgment rendered against him and one Anderson, his surety on his bond, by the ordinary, and at the motion of counsel for the other side, a judgment written by that counsel was rendered for a certain sum, with interest, in favor of said defendants; that his counsel returned from Chattooga court too late to
Judgment affirmed.