82 Ga. 198 | Ga. | 1888
Cody N. Usry filed his petition in the court of ordinary of McDuffie county, calling upon Joshua E. Usry, who was alleged to have been appointed by that court guardian of petitioner “while a minor, to make a settlement with him as to property for which it was alleged he had never accounted. Petitioner also alleged that he had attained his majority, and that Joshua E. lived in Glascock county. Joshua E. did not appear, though personally served, and judgment was rendered against him. He appealed to the superior court, where he moved to dismiss the case on the ground that the court had no jurisdiction of his person, it appearing from the face of the papers that he resided in Glascock county. Upon the hearing of this motion, the following facts were admitted: .
TTpon these facts, the motion to dismiss was sustained; to which decision Cody N. Usry excepted on the grounds (1) that the motion came too late; (2) that the court of ordinary had jurisdiction, defendant having voluntarily made himself an officer of that court, having qualified there, made returns there, etc., and that being the proper place for him to settle his accounts with his ward; and if the court of ordinary had jurisdiction of the citation, the superior court had jurisdiction of the appeal.
The question in this case is, whether this guardian, who resided in Glascock county, and applied to the ordinary of McDuffie county for letters of guardianship, can be cited, under section 2598 of the code, by the ordinary of McDuffie county to appear before him, out of the county of his residence, and make a settlement with his ward. The court below decided that he could not be, because he could not be sued out of the county of his residence, under the constitution and laws of the State. That is the decision we are required to review in this ease. As far as we know, this is the first time this question has ever been made squarely before this court. ¥e think the court below erred in its decision in dismissing the plea in this case. This guardian, as appears-from the record, while he lived in a different county, applied to the ordinary of McDuffie county for
It was insisted, however, by counsel for tbe defendant in error, that this court has decided differently in tbe ease of Young vs. Brown, 75 Ga. 1. It is true that a majority of tbe court, in that case, did bold, incidently, that a guardian or administrator could not be cited for a settlement by tbe ordinary, out of tbe county of bis residence; but we have carefully read that case, and do not think that it was necessary, in tbe decision of that case, to have decided that point, tbe judgment of tbe court being sustained on other and satisfactory grounds stated in tbe decision. Besides, it will be seen that there was a dissenting opinion in that case on this identical point. ¥e find no fault witb tbe judge below in bis having followed that case, but tbe reasoning of it does not satisfy our 'minds. To follow it would virtually repeal section 2598 of tbe code, as to guardians, administrators and executors who reside in different counties from tbe one in which they obtain their letters; to follow it would force the heirs and distributees, or wards, in all cases of that kind, to resort to a slow and expensive suit on tbe equity side of tbe court, in a county perhaj:s remote from tbe returns of tbe trustee. Under this section, 2598, et seq., tbe administrator has tbe right to cite tbe distributees of tbe estate before tbe ordinary where be obtains bis letters, for tbe purpose of having a settlement witb him, and we see no hardship in allowing tbe distributees to cite him before tbe court which be has voluntarily come into and asked to be made one of its officers. While generally tbe laws and tbe constitution require that a person shall be sued in all civil eases in tbe county wherein be resides, there is no law which prevents a person from
Judgment reversed.