Wash v. Dickson
94 S.E. 1009
Ga.
1918
Check Treatment
George, J.

(After stating the foregoing facts.) The main contention of the plaintiffs in error is that the judgment of the court of ordinary, appointing Kennedy administrator of the estate of William Wash is void, and therefore Dickson’s deed is void, and both being void they can, in a proceeding confessedly collateral, be attacked as void. Incidentally it is said that the Supreme .Court in Wash v. Wash, 145 Ga. 405 (89 S. E. 364), declared, *544in effect, the judgment appointing Kennedy administrator to be void. The necessary effect of the decision referred to will be presently considered.

A court of ordinary in the matter of administering estates is a court of general jurisdiction. Tant v. Wig fall, 65 Ga. 412; Barclay v. Kimsey, 72 Ga. 725; Jones v. Smith, 120 Ga. 642 (48 S. E. 134). It is to be presumed in favor of one of its judgments that every fact necessary to make it valid and binding was before the court. Jones v. Smith, supra; Stuckey v. Watkins, 112 Ga. 268 (37 S. E. 401, 81 Am. St. R. 47). Thus, if the record is incomplete, or is merely silent concerning jurisdictional facts, the judgment, by reason of the presumption, will sustain itself against collateral attack by parties or privies on account of an alleged want of jurisdiction. 1 Black on Judgments (2d ed.), 406, § 271; Medlin v. Downing Lumber Co., 128 Ga. 117 (57 S. E. 232); Riddle v. Shoupe, 147 Ga. 387 (94 S. E. 236). Eor want of jurisdiction, appearing on the face of the record, the judgment may be collaterally attacked. Jones v. Smith, supra. From the for.egoing elementary principles deducible from all our decisions, it follows that a judgment of a court of ordinary granting letters of administration can be collaterally attacked only where the jurisdiction of the court is negatived by the record. The petition upon which the administrator was appointed alleged that “petitioner is entitled under the law to administer upon said estate, being requested so to do by the relatives of said deceased.” By this allegation the right of the applicant to administer the estate is claimed, but the averment does not purport to be exhaustive. If so, the averment is that the petitioner is legally entitled to administer the estate, because “requested so to do by the relatives of said deceased.” The Civil Code (1910), § 3943, provides rules for granting letters of administration. By par. 3 under that section, where there are several of the next of kin equally near in degree, “the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed,” even though the person selected be a stranger. Mattox v. Embry, 131 Ga. 283 (2), 286 (62 S. E. 202). By par 6, any qualified, disinterested person may be selected to administer the estate by the persons entitled to the estate. The allegation that the applicant had been “requested” to administer the estate “by *545the relatives” of the intestate is not inconsistent with a selection by the relatives, or those entitled to the estate. “The relatives of the deceased” is a broad term, and may include the next of kin. In the many eases in our books dealing with contracts required by the statute of frauds to be in writing, it has been uniformly ruled that if the petition declares on such a contract and does not disclose that the contract is an oral one, the presumption is that the contract is in writing; and this is true as against even a special demurrer. The allegation in the application for letters of administration in the instant case not only does not negative the existence of jurisdictional facts, but, in the absence of a special demurrer, is sufficient to admit proof to the effect that the applicant has in fact been selected in writing by a majority of the next of kin of the intestate, or has been selected by those persons entitled to the estate.

The necessary effect of the decision in the case of Wash v. Wash, supra, is that the judgment rendered upon the application filed by Kennedy was not void for want of jurisdiction, appearing upon the face of the record, but void only in the event it should be shown, as the motion to set aside the judgment alleged, that the applicant was not requested by the relatives of the intestate to administer the estate, and was not in fact entitled under the law to administer the estate, that is, did not come within any one of those classes of persons designated in the Civil Code, § 3943. The precise fraud, though it is charged — as it properly should be charged — “after the fact,” and not “after the legal effect of the fact,” is the representation made to the court' that the applicant was “requested by the relatives” of the intestate to administer the estate, when in truth he had not been requested or selected by the heirs at law and was not otherwise entitled to the appointment prayed.

Whether the judgment appointing the applicant administrator of the estate was in fact void remains for determination by the jury on the trial of the direct proceeding filed to set aside the judgment, but it can not be collaterally attacked in this proceeding; and the controlling contention made by the plaintiff in error must be determined against him. 'He erroneously interpreted the decision of the court in Wash v. Wash, supra, in ruling upon the sufficiency of the petition to withstand a general demurrer. His *546going upon the land of the .defendant in error was therefore a legal trespass; and so long as the judgment appointing the administrator, and the deed executed by the administrator thus appointed, remain of force and effect, the attempt to interfere with the possession of the defendant in error must be considered a trespass. The plaintiff in error can have no vested right in those wrongful acts which he misconceives to be the “possession” which a court of equity will not disturb by injunctive relief by restraining further and continuing acts of trespass. Goodrich v. Georgia Railroad Co., 115 Ga. 340 (41 S. E. 659); Mackenzie v. Minis, 132 Ga. 323 (8), 325 (63 S. E. 900, 23 L. R. A. (N S.) 1003, 16 Ann. Cas. 723). Nor can it avail a continuing trespasser as against the prayer of one actually in possession of land, as the judge was authorized to find under the evidence in the present record, that he is financially able to respond in damages for his trespass. Moore v. Daugherty, 146 Ga. 176 (2), 179 (91 S. E. 14).

Judgment affi/i'med.

All the Justices concur, except Fish, C. J., absent.