1. The allegations of the petition, construed most strongly against the pleader, show that a general guardian had been appointed for the plaintiff; hence he can not maintain the present action in his own name.
2. A judgment of a court of a foreign State having jurisdiction of the subject matter and the parties can not be collaterally attacked in the courts of this State on the ground of fraud.
Nos. 15454, 15455. MAY 8, 1946. REHEARING DENIED JUNE 6, 1946.
Lawrence A. Wood filed his petition against Rubye Mae Wood seeking a divorce on the ground of three-years' desertion. His petition alleged that he is a resident of Georgia and the defendant a resident of Florida. By amendment he alleged, so far as is here pertinent, that the desertion and abandonment occurred in the State of Florida; that on June 18, 1935, upon the petition of his wife, Ray E. Lee was by "the Court of County Judge of Pinella County, Florida, . . appointed guardian of the property of plaintiff; that said petition was made and filed under authority of and pursuant to an act of the Florida Legislature, approved August 25, 1929, providing for the appointment of special guardians to receive from the Veterans' Administration compensation and benefits, and which were specifically set forth in said petition;" that the appointment was procured at a time when the plaintiff was a patient of the veterans' hospital in Augusta, Georgia, and was the result of a conspiracy between his wife and Ray E. Lee, the purpose of which was to get possession of the plaintiff's property; that after the appointment of the guardian and in furtherance of the conspiracy the guardian filed a petition in the Florida court, representing "that subsequent to his qualification as guardian as aforesaid there had come into his hands additional funds from the United States Government, and that it had been recommended as advisable by the United States Veterans' Facility that
a bond in the penal sum of $4500 be provided;" that the additional bond was given; that the facts alleged in the petition for an increased bond were untrue, no additional funds having come into the hands of the guardian from the Federal Government, but the real purpose was to get possession of his property located in Marion, Indiana; that the guardian, in furtherance of the conspiracy, "did thereafter collect from plaintiff's savings account in the First National Bank of the City of Marion, State of Indiana, the sum of $3736.91, and has also collected from plaintiff's real estate in Marion, Indiana, from the sale of real estate and rents, a sum in excess of $1500;" that the plaintiff's wife and the guardian, in furtherance of the conspiracy, by petition represented to the Florida court that plaintiff "was suffering from dementia praecox and was a violent and dangerous person," and had him committed to the veterans' hospital in Augusta, Georgia; that the plaintiff is not and has never been mentally incompetent; that the physicians in charge of the veterans' hospital finally realized the charges were unfounded and discharged the plaintiff from the hospital, and he has for more than four years been a citizen of Augusta, Georgia, and has there held responsible business positions; that in April, 1945, the plaintiff went back to Florida to visit his children, and his wife and said guardian, in a day or two after his arrival in Florida, had him arrested under the false charge that he was breaking the peace, and caused him to be again confined in the veterans' hospital at Augusta, Georgia; that he immediately sued out habeas corpus proceedings before the court of ordinary of Richmond County, Georgia, and after a hearing on this proceeding the ordinary passed the following order: "Upon hearing the evidence in the above-stated case, and no sufficient grounds being shown for the retention of said Lawrence A. Wood, it is ordered and adjudged by the court that said Lawrence A. Wood be immediately released from custody;" that "the said Ray E. Lee, guardian, since his appointment has obtained possession of cash money belonging to plaintiff in excess of $20,000, and which he together with the plaintiff's wife has misappropriated, and both of whom are now diligently seeking to avoid an accounting of an with plaintiff."
The wife filed certain objections to the amendment offered by the plaintiff. The trial judge overruled the objections and allowed the amendment. To this ruling the wife duly preserved her exceptions
pendente lite. The wife then filed a general demurrer to the petition as amended, and the trial court sustained the demurrer and dismissed the petition.
The plaintiff excepts to the judgment sustaining the general demurrer and dismissing the petition. The defendant in her cross-bill assigns error on her exceptions pendente lite to the judgment overruling her objections to the amendment offered by the plaintiff.
1. The general demurrer raises the question whether or not the plaintiff, since his petition shows that he has a guardian, can maintain this petition brought in his own name. Of course it is a well-settled rule of law that, if he is mentally incompetent and has a duly appointed guardian, ordinarily all actions on his behalf must be brought by the guardian. See Code, § 37-1003. It is contended that this rule does not apply, for the reason that the petition shows the guardian to have been a special guardian. The language of the petition is as follows: "That said petition [for guardianship] was made and filed under authority of and pursuant to an act of the Florida Legislature, approved August 25, 1929, providing for the appointment of special guardians to receive from the Veterans' Administration compensation and benefits, and which were specifically set forth in said petition." No further effort is made to plead the Florida statute.
"Florida not being one of the thirteen original colonies or derived from territory belonging thereto, a contract of that State will be construed by the courts of this State according to the statutes and laws here of force, in the absence of any pleaded particular statute of that State governing the construction of the contract, or any pleaded general statute adopting the common law of England." Trustees of Jesse ParkerWilliams Hospital v. Nisbet, 189 Ga. 807 (7 S.E.2d 737). See also Champion v. Wilson, 64 Ga. 184, 188, Wells v.Gress, 118 Ga. 566 (2) (45 S.E. 418), Atlantic Coast LineR. Co. v. Barton, 14 Ga. App. 160, 162 (80 S.E. 530), andGreen v. Johnson, 71 Ga. App. 777, 780 (33 S.E.2d 443). Since the plaintiff did not properly plead or set forth in his petition the Florida statute, no effect can here be given to his contention as to such statute. Moreover, it appears from the petition that the guardian collected, as guardian, from a bank in another State more than $3000 from a savings account of his ward;
that he collected rent due on real estate belonging to his ward, sold real estate belonging to his ward, and altogether collected more than $20,000 belonging to his ward. Construing the petition most strongly against the plaintiff, as must be done, the petition shows the guardian to be a general and not a special guardian.
2. The plaintiff in error contends that the guardianship proceedings in the Florida court and the judgment obtained thereon were the result of a fraud practiced upon him by his wife and the guardian; and by inference, at least, argues that for this reason the Florida judgment is subject to collateral attack in the courts of this State. Conceding, for the purpose of what is here said, but not holding, that his petition does show fraud, is it such a case of fraud as will permit him to collaterally attack the judgment of the Florida court in this proceeding? The Supreme Court of the United States, in Hanley v. Donoghue,116 U.S. 1, 4 (6 Sup. Ct. 242, 29 L. ed. 535), has this to say: "Judgments recovered in one State of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and the parties."
In Alabama Great Southern R. Co. v. Hill, 139 Ga. 224,228 (76 S.E. 1001, 43 L.R.A. (N.S.) 236, Ann. Cas. 1914 D, 996), Mr. Justice Evans, speaking for the court, so fully covered the question here made that we deem it sufficient to quote his language: "But it is said that a collateral attack on a judgment on the ground of fraud is allowable as an exception to the general rule. Dicta to this effect may be found in our reports. In some instances the remark is made in passing, without special reference to the point under discussion; in others it will be found that the collateral attack was justifiable on other principles. Thus in Sharman v. Morton, 31 Ga. 45, and inThomas v. Morrisett, 76 Ga. 397, one of the points was whether a defendant in a foreign judgment could collaterally attack it by showing that he had not been served, notwithstanding the record showed a return of service; and the court held that this could be done on the universally accepted principle that want of jurisdiction in a court to render a judgment in personam on the ground of want of service may be collaterally shown. In those cases the fraud consisted in obtaining service of the suit
on the defendant. Other cases depend on statutes which make an exception. Thus, an attack may be collaterally made on a judgment of discharge procured by an administrator by fraud; the statute declares such a judgment to be void. Pass v. Pass, 98 Ga. 791
(25 S.E. 752). Other exceptions exist — such as where the judgment bears a fatal defect on its face, and where the court is without jurisdiction of the subject-matter and of the person. Likewise creditors or bona fide purchasers may collaterally attack a judgment for fraud whenever and wherever it interferes with their rights. Civil Code, § 5966. But in order to allow a collateral attack the judgment must be void. Civil Code, § 5968. The statute declares that `the judgment of a court of competent jurisdiction can not be collaterally attacked in any other court for irregularity, but shall be taken and held as a valid judgment until it is reversed or set aside.' Therefore a judgment procured by fraud must be deemed as absolutely void before it can be collaterally attacked. While a judgment procured by fraud may be set aside for the fraud in a direct proceeding, still, if the judgment is rendered by a court of competent jurisdiction, the parties are concluded by it until it is set aside. Van Fleet on Collateral Attack, § 550; Grier v. McLendon, 7 Ga. 362,365; Griffin v. Sketoe, 30 Ga. 300; Thompson v. Tomlie, 2 Pet. 157 (7 L. ed. 381). The judgment is voidable for the fraud, but is not absolutely void until vacated in a direct proceeding."
The petition in the instant case shows that a guardian was appointed for the plaintiff by a probate court of the State of Florida, a court that must be presumed to have had jurisdiction of the subject-matter and the parties until the contrary is made to appear. It follows that the Florida judgment is not subject to the collateral attack here sought to be made.
For the reasons stated, the trial court did not err in sustaining the general demurrer.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the justices concur, except Bell, C. J., whodissents.