42 S.E.2d 748 | Ga. | 1947
1. It is beyond the scope of a guardian ad litem's authority to consent to the probate of a will which by the birth of his ward has been revoked by operation of law, and a petition alleging such facts states a cause of action for setting aside the judgment of probate.
2. A next friend has no authority to compromise or settle a suit except by leave of the court.
3. Issues which are made, or which under the rules of law could have been made in the cause, cease to be res judicata when the judgment therein rendered is set aside in a court of competent jurisdiction. Code, § 110-501.
4. The allegations of the petition were sufficient to show such fraud as would authorize the setting aside of the judgment complained of.
5. Where there is such a common connection between different causes of action as to render it proper for a court of equity to determine all of them in one suit, and this can be done with safety and without great inconvenience to any of the parties, the petition should not be dismissed upon the ground of multifariousness.
6. All persons who are directly or consequentially interested in the event of a suit should be made parties.
7. In order to set aside a judgment, it is necessary that the parties thereto, or their representatives, be made parties to the proceeding in which it is sought to have that done.
8. An executor de son tort is one who wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual whose estate has no legal representative. The provisions of the Code, § 113-1102, are not applicable to one who takes possession of the assets of an estate in his representative capacity after he was appointed and qualified either as executor or administrator.
9. A conclusion in a pleading is not subject to special demurrer if the inference stated therein may be legitimately drawn from the special facts pleaded or from exhibits attached to and made a part of the pleadings.
The demurrer attacks the petition upon the following general grounds: (1) The petition sets forth no cause of action, legal or equitable, against Mrs. Adele George Saliba, either individually or as representative of the estate of George M. Saliba I; (2) it sets forth no cause of action, legal or equitable, against Mrs. Camilla Saliba Shibley, individually or as representative of the estate of John Rogers Saliba, nor against the minor children of Mrs. Shibley; (3) insofar as the petition seeks to set aside the judgment in the court of ordinary probating the will of John Rogers Saliba, it sets forth no cause of action, because the petition shows on its face that the grounds alleged for this purpose are the same as those which were alleged, or which could have been alleged, in a former equitable suit brought by the plaintiff in the Superior Court of Terrell County, Georgia, for the same relief, resulting in a final judgment adverse to him on December 6, 1945; (4) it affirmatively appears from the petition that this suit seeks to set aside a final judgment in a former equitable suit in Terrell Superior Court, upon the same grounds and for the same relief as those alleged therein, which terminated by final judgment adverse to the plaintiff on December 6, 1945; (5) it does not set forth a cause of action, legal or equitable, as against any of the defendants, because the allegations of fraud are insufficient to authorize the court to set aside the judgment rendered in the equitable suit on the date stated.
The petition was demurred to specially on the grounds of multifariousness, misjoinder and nonjoinder of parties, and because it contains allegations which the demurrants insist are mere conclusions of the pleader. They further specially demurred to paragraph 3 of the plaintiff's amendment because it is not alleged in what manner George M. Saliba I assumed to act as executor of the estate of John Rogers Saliba, what personal property of the estate he took charge of and converted to his own use, or any other fact sufficient to show a right of recovery under the Code, § 113-1102; and because this part of the amendment is repugnant to and inconsistent with paragraph 4 of the petition, which alleges that the will of John Rogers Saliba was probated, and George M. Saliba I was appointed and qualified as executor. They also *281 specially demurred to paragraph 4 of the amendment because it is not alleged how, when, or in what manner the defendant, Mrs. Camilla Saliba Shibley, assumed to act as administratrix with the will annexed of the estate of John Rogers Saliba, what personal property of the estate she took charge of and converted to her own use, or any other fact sufficient to show a right of recovery under the Code, § 113-1102; and because this allegation of the amendment is repugnant to and inconsistent with paragraph 2 of the petition, which alleges that Mrs. Shibley was appointed administratrix with the will annexed of the estate of John Rogers Saliba.
To a judgment overruling the demurrers the defendants excepted and the case is here for review.
1. "In all cases, the marriage of the testator or the birth of a child to him, subsequently to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will." Code, § 113-408. In Sutton v.Hancock,
We do not think it necessary to enter into any extended discussion of the authority of a guardian ad litem to represent and bind his ward, but it is sufficient here to say that, where a proceeding is filed to probate a will which unquestionably has been revoked by the subsequent birth of a child, and no provision has been made in contemplation of that event, and that fact appears on the face of the proceedings, consent by a guardian ad litem that the will be probated is clearly beyond the scope of his authority, and on a proper application for that purpose the judgment of probate should be set aside. The allegations of the petition, therefore, are sufficient to state a proper cause of action for setting aside the judgment of probate.
2. But how stands the petition with reference to setting aside the judgment sustaining the demurrer and dismissing the suit in the equitable proceeding filed in the Superior Court of Terrell County? The plaintiff's former guardian ad litem, as his next friend and for herself individually, brought that suit and prayed that the judgment probating the will of John Rogers Saliba be *283
set aside. It alleges that during the pendency of that suit, and after a general demurrer had been interposed to the petition, the executor, George M. Saliba I, agreed with his mother (plaintiff's next friend) that, if she would consent for the demurrer to be sustained, he would agree that she might have a year's support out of the estate of her deceased husband, the plaintiff's father, on condition that she and the plaintiff would have no further interest in the estate. Pursuant to this agreement, appraisers set apart $25,000 as a year's support to the plaintiff and his mother, and on receipt of the same by his mother the demurrer which had been filed was sustained by and with her consent and the suit dismissed. The estate of his father is of the approximate value of $125,000. The court was not advised of the agreement between his next friend and the executor and did not approve it. The plaintiff was about thirteen months old when the judgment sustaining the demurrer was rendered. It is alleged that the agreement between his next friend and the executor, George M. Saliba I, was collusive and constituted a fraud on the plaintiff insofar as his interest in his father's estate was concerned, and his mother as his next friend in making the agreement with the executor was grossly negligent in the performance of her duty to the plaintiff. The court would not have sustained the demurrer and dismissed the case had he been apprised of the facts upon which the plaintiff's next friend consented thereto. For purposes of the demurrer, we must take the allegations of the petition as true. In the circumstances of this case as they are reflected by the petition as amended, did the next friend, without leave of the court, have authority thus to compromise and settle the issues made in the case? We think not. "A guardian ad litem or next friend has no authority to compromise or settle a suit except by leave of the court."Betts v. Hancock,
From the allegations in the instant case no such presumption, however, arises, and it must necessarily be assumed therefrom that the court did not investigate the propriety of the settlement and the facts and justice upon which it was made.
3. The petition is attacked by grounds 3 and 4 of the demurrer as failing to state a cause of action, because its allegations affirmatively show that the same grounds for setting aside the judgment of probate were alleged or could have been alleged in the equitable suit filed in the Superior Court of Terrell County, Georgia, which terminated in a judgment adverse to the plaintiff on December 6, 1945; and because the allegations of the present petition show that the judgment of December 6, 1945, is now sought to be set aside for the same reasons as those alleged in the equitable proceeding in Terrell Superior Court, which resulted in a judgment adverse to the plaintiff. It will be conceded that, if the allegations in the instant case are insufficient to state a cause of action for setting aside the former judgment, in the equitable suit, then all of the issues raised by the petition here are res judicata. Ordinarily the defense of res judicata must be raised by special plea, but where the facts showing such defense appear on the face of the petition, it may be taken advantage of by motion or demurrer.Ellis v. First National Bank,
4. "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." Code, § 37-219. "Fraud will authorize equity to annul conveyances, however, solemnly executed, and to relieve against awards, judgments, and decrees obtained by imposition." § 37-709. It is urged by the demurrer that the petition does not allege a cause of action, legal or equitable, for setting aside the judgment rendered in the equitable suit on December 6, 1945, because the allegations of fraud are insufficient for such relief. When this litigation was before us the first time, we necessarily examined the petition as amended to see if the appointment of a receiver was proper, and we were then of the opinion that its allegations were sufficient to state a proper cause for receivership, and we are still of that opinion. Some of the relief prayed has, therefore, been granted and has become the law of this case. The allegations, we think, are amply sufficient to show a deliberate and continuous scheme or plan to wrongfully deprive the plaintiff of any interest in his father's estate, and such allegations are sufficient to state a cause of action for setting the judgment aside upon the ground of fraud.
5. The defendants demurred to the petition upon the ground that it is multifarious, in that there is a misjoinder of causes of actions. It is contended that an action to set aside the judgment of the court of ordinary, probating the will of John Rogers Saliba, is entirely different from and cannot be joined in the same petition with an action to set aside the judgment of the superior court adjudicating the judgment of the court of ordinary to be a valid and binding judgment. While multifariousness is a defect in pleading which may be raised by demurrer (Code, § 81-304), it is, however, a ground not favored by courts of equity, for the reason that "it is the interest of the parties as well as the interest of the public that all matters in controversy between them should be settled by one suit, when it can be done with safety and without great practical inconvenience." Nail v. Mobley,
6. The petition names the minor children of Mrs. Shibley as parties defendant. The defendants specially demurred upon the ground that they are not proper or necessary parties for any of the relief prayed, and that consequently there is a misjoinder of parties defendant. If the will of John Rogers Saliba is valid, these parties take a remainder interest in his estate. If the relief prayed is granted, they will take no part of the estate. It is a well-settled rule that all persons who are interested in the result of litigation should be made parties, either plaintiff or defendant, to proceedings for equitable relief. Code, § 37-1004; Henderson v. Napier,
7. The petition is further specially demurred to upon the ground of nonjoinder of a necessary party. The defendants take the position that Mrs. Mary Sheffield Saliba (Mrs. John Rogers Saliba) should have been named as a party. We think that this position is well taken, and that this ground of the demurrer should *287
have been sustained. She was an actual party individually to both of the proceedings wherein this litigation seeks to set aside the final judgment. In the probate proceeding, she represented this plaintiff as guardian ad litem and in the equitable proceeding she appeared for the plaintiff as his next friend. In order to set aside a judgment, it is necessary that the parties thereto, or their representatives, be made parties to the proceeding in which it is sought to have this done. Miller v. Buller,
8. By the Code, § 113-1102, it is declared: "If any person, without authority of law, wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs or legatees of such estate for double the value of the property so possessed or converted by him." The allegations of the petition affirmatively show that George M. Saliba I as executor took possession of the estate of John Rogers Saliba, and that on his death Mrs. Camilla Saliba Shibley was appointed administratrix with the will annexed, and duly qualified. "If one wrongfully takes possession of personalty of a deceased person whose estate is unrepresented, and renders himself liable as an executor in his own wrong, but is then appointed administrator and duly qualifies as such, he cannot, in a suit thereafter brought, be held liable as an executor in his own wrong on account of such prior conduct; but he becomes liable for the proper administration of the estate as a lawful administrator." Mathews v. DeFoor,
9. The remaining grounds of special demurrer attack certain allegations of the petition as being mere conclusions of the pleader. We deem it unnecessary to deal specifically with each of these several grounds of special demurrer, as they are without merit. A conclusion in a pleading is not subject to special demurrer if the inference stated therein may be legitimately drawn from the special facts pleaded or from the exhibits attached to and made a part of the pleadings. Western AtlanticRailroad v. Reed, *288
Judgment affirmed in part, and reversed in part. All theJustices concur.