176 Ga. 12 | Ga. | 1932
Elizabeth Walker, Alice Hill, Lee Williamson, and Frank Williamson, as heirs at law of John A. Smith, deceased, filed their petition against the sheriff of DeKalb County and Mary Key, alleging that Smith died intestate January 12, 1924, seized of described real estate; that he did not owe any debts; that on March 30, 1927, the heirs at law divided the real estate among themselves;
The petition was dismissed on demurrer. The grounds of demurrer were that the petition is without equity and does not show any reason for equitable interference; that it does not affirmatively allege that petitioners are heirs at law, of kin to, or creditors of the estate of John A. Smith; that it fails to show sufficient reason in law why the judgment complained of should be vacated; that it shows on its face a lack of diligence and negligence and laches on the part of petitioners; that petitioners were not parties to the suit in the city court of Decatur, and as third parties were not entitled to have the judgment set aside; that the petition shows affirmatively that all proceedings preceding the verdict and judgment were regu
The first three headnotes do not require elaboration.
The application for the appointment of administrator is not void on its face. It fails to allege that the applicant is an heir at law of the decedent or a creditor of the estate, or any other reason which, under the law, would entitle the applicant to administration. It is insisted that for this reason the appointment of the administrator is void. It was held in Towner v. Griffin, 115 Ga. 965 (42 S. E. 262), that a failure to make such allegation was sufficient ground to dismiss the application on motion by caveators appearing at the hearing, who were heirs at law of the decedent. In the present case no motion by any person was made at the hearing to dismiss the application on that ground. The attack in this case is made by a proceeding in equity for the first time after the appointment of the county administrator and after the rendition of judgment against him in the city court. The petition alleges that the intestate left “as heirs at law” certain named persons. It does not affirmatively deny that Mary Key was an heir at law. It alleges that the intestate “left no debts owing by him to any one.” Conceding the sufficiency of the allegation that there were no debts, such allegation is contradicted by the judgment rendered in the city court, shown by other portions of the petition. In McCowen v. Flanders, 155 Ga. 701 (118 S. E. 351), the petition did not allege that the application for appointment of an administrator showed on its face that the intestate died without legal descendants ; that he left no debts; that the applicant was not of kin or a creditor of the deceased, or had no interest in the estate. In that case it was held that a petition failing to contain the allegations just stated was subject to general demurrer. The allegations in this case, like those in McCowen v. Flanders, failed to bring this case within the terms of the Civil Code, § 4585. The allegations made in the application were sufficient where it was sought to have the county administrator appointed to represent the estate of the decedent. §§ 3952, 3957. On that petition the court of ordinary rendered a judgment appointing the county administrator.
The general rule is that a court of equity, upon a proper application, will set aside a judgment which has been obtained by fraud, “where such fraud is extraneous to the issues in the proceeding attacked, and especially where the court has been imposed upon by such fraud. . .. The fraud must be actual and positive, and not merely constructive; there must be perpetration of an intentional wrong, or the breach of a duty growing out of a fiduciary relation.” 34 C. J. 470, § 738. “The principle is well established that courts of justice have power, on due proceedings had, to set aside or vacate
In Thomason v. Thompson, 129 Ga. 440, 446 (59 S. E. 236, 26 L. R. A. (N. S.) 536), this court applied these general principles, stated with great clearness by Mr. Justice Evans, as follows: “There is no pretense that any irregularity entered into the various stages of the proceedings which eventuated in the sale [sale of property under mortgage foreclosure]. The sale is said to be void solely because the mortgage on which the judgment of foreclosure is founded is without consideration and fraudulent. The plaintiff is held off from an immediate attack on th,e sheriff’s deed, by a judgment upon the very issue which plaintiffs in fi. fa. caused to have been made in the rule case to distribute the money arising from the sale of the land by the sheriff. . . This judgment estops the plaintiff from raising for the second time the identical matter therein decided. To avoid any estoppel, the plaintiff seeks to set aside this judgment as one procured by perjury and fraud practiced on the court, the fraud alleged being that the mortgagor falsely and fraudulently represented to the court the hona fides of his mortgage, and with the aid of perjured testimony procured an unconscionable advantage.” The court held: “The fraud in cases of this kind is collateral and extrinsic of the judgment. The great current of authority limits the frauds for which a bill to set aside a judgment between the same parties, rendered by a court of competent jurisdiction, will be sustained, to those matters which are extrinsic and collateral to the matter tried. U. S. v. Throckmorton, 98 U. S. 61 [25 L. ed. 93]; Pico v. Cohn, 91 Cal. 129 [25
That brings us finally to the question whether the allegations of fraud, under the law stated above, were sufficient to withstand a general demurrer to the petition. The allegation that Mary Key told the petitioners, who describe themselves as heirs at law of the intestate, that the latter owed her nothing, and that she afterwards went into court asserting an indebtedness of the estate to her, was a fraud on the petitioners and on the court, is not sufficient. Knox v. Raynor, 146 Ga. 146 (90 S. E. 853). The relations between the parties were not of a fiduciary character. Petitioners were unaware of the proceeding in the court of ordinary for the appointment of an administrator, and of the pendency of the suit in the city court, until after judgment. As we have stated, the mere allegation that the administrator was appointed without notice to the petitioners will not show cause to set aside the judgment. It must be presumed, there being no allegation to the contrary, that all citations required by law were published.
The statement of Mary Key to the petitioners that the intestate did not owe her anything, did not, in itself, constitute a material fact which could affect, one way or another, the appointment of the administrator. Although the ordinary of the county published citations as required in such cases, the petitioners in this case did not appear. If they had appeared, they could have availed themselves of the opportunity to object to the appointment of an administrator, because of defects in the application. After the appointment of the administrator Mary Key could properly file her suit against the administrator, assuming that she had a cause of action. It was not against these petitioners, and the statement alleged to have been made by Mary Key to the petitioners to ■ the effect that the intestate owed her nothing could not, therefore, have been the cause of the petitioners remaining away from the trial in