Opinion
35467.
DECIDED FEBRUARY 28, 1955. REHEARING DENIED MARCH 18, 1955.
Caveat to letters of dismissal. Before Judge Guess. DeKalb Superior Court. October 4, 1954.
Ben F. Sweet, for plaintiff in error.
Weekes Candler, contra.
In the present case, after paying a judgment rendered against his adult ward during her mental incompetency, and after her restoration to sanity was declared by a court of ordinary, the guardian had a final settlement with her, and by petition to the court of ordinary sought letters of dismission and approval of his final returns. To such application the former ward filed a caveat, which as amended objected to the grant of letters of dismission and approval of the final returns, on the ground that the judgment paid by him was in an action against her during her incompetency, and though service was prayed against the guardian and herself, service was had only upon the guardian; that, as shown by a certified copy of the proceedings in the case, the judgment was void on its face; that the said judgment has since been vacated and set aside; that the disbursement thereunder by the guardian was unauthorized, and the approval thereof should be set aside; and it was also alleged that the guardian was grossly negligent in permitting the aforesaid judgment to be rendered. After a hearing, the court of ordinary entered an order dismissing the caveat as amended and granting dismission. The case was appealed by the caveator to the Superior Court of DeKalb County. The guardian filed a motion to dismiss, on the ground that the amount paid in the suit hereinbefore mentioned was in response to a valid judgment and had been approved by the Court of Ordinary of DeKalb County, and that there was no basis for the appeal. The trial judge sustained the motion, and the caveator excepted. Held:
The provisions of Code § 81-212 as to service upon minors applies also to insane persons. Collins v. Gormley, 51 Ga. App. 260 ( 179 S.E. 906). In an action against such an incompetent, process must be prayed for and also served upon him. Scott v. Winningham, 79 Ga. 492 ( 4 S.E. 390). Without the required service or waiver thereof, there is no suit, and a judgment in such a case is a mere nullity. Code § 110-709; Winn v. Armour Co., 184 Ga. 769 ( 193 S.E. 447); Lott v. Lott, 207 Ga. 34, 35 ( 59 S.E.2d 912); Jackson v. Jackson, 199 Ga. 716, 722 ( 35 S.E.2d 258); Ivey v. State Mutual Ins. Co., 200 Ga. 835, 838 ( 38 S.E.2d 601). Accordingly, since it was shown by the record in the case in which the judgment complained of was rendered that there was no service upon the insane ward, the judgment was void. It was shown by the guardian's vouchers that the guardian had obtained from the ward, after she was declared restored to sanity, a receipt for settlement in full; it was also shown that this occurred before the grant of letters of dismission. However, this receipt is properly a matter of evidence to be urged by the guardian when and if this case is tried, and is not a matter before this court at the present time. In this connection, see Code § 20-206, and Griffin v. Collins, 121 Ga. 102 (4) ( 49 S.E. 827). It follows that, since the judgment was void and there remained a question for determination by a jury as to the claim upon which the suit was based, the trial judge erred in dismissing the appeal of the caveator.
Judgment reversed. Felton, C. J., and Quillian, J., concur.
DECIDED FEBRUARY 28, 1955 — REHEARING DENIED MARCH 18, 1955.
Mrs. Lucille White Abner was committed to the Milledgeville State Hospital after being declared mentally incompetent. Later, on February 20, 1951, John Wesley Weekes was appointed guardian of Mrs. Abner by the Ordinary of DeKalb County, Georgia, and as a result of such appointment received certain sums of money belonging to Mrs. Abner. In April 1951, the administrator of the estate of Mrs. Loyce York, Mrs. Abner's daughter, brought suit against Mrs. Abner, process was prayed for against Mrs. Abner, but according to the record she was not served. Process was served on Weekes, as Mrs. Abner's guardian, who answered the suit. On December 6, 1951, a verdict was rendered against Mrs. Abner by the Superior Court of DeKalb County. On January 3, 1952, Mrs. Abner's guardian paid the judgment from her funds in the guardian's hands. Annual returns were filed by the guardian. On July 23, 1952, Mrs. Abner was adjudicated a person of sound mind in the Court of Ordinary of Polk County, Georgia. On July 30, 1952, the guardian filed a petition for letters of dismission to be issued to him, and made a final settlement with his ward, Mrs. Abner. On August 28, 1952, Mrs. Abner filed her caveat, or objections, to the request for letters of dismission, on the ground that the judgment paid by the guardian was void and of no effect; and she prayed that the annual return of the guardian, filed June 30, 1952, be set aside, and that the guardian be required to account for the $2,000 paid under the void judgment. On August 18, 1953, Mrs. Abner filed an amendment to her caveat, alleging that the judgment paid by the guardian had been vacated and set aside by the Superior Court of DeKalb County on June 16, 1953; that the disbursement by the guardian of the funds of Mrs. Abner to pay the judgment was unauthorized; and that the guardian should be required to account to the caveator for such money. On December 17, 1953, the caveator filed a second amendment to her caveat, alleging that the guardian was guilty of a gross failure to exercise proper diligence in permitting the judgment of December 6, 1951, to be rendered. On December 19, 1953, the Ordinary of DeKalb County, Georgia, issued an order dismissing the caveat and its amendments and granting the guardian's petition for letters of dismission. On December 21, 1953, the caveator filed an appeal from this order to the Superior Court of DeKalb County. The appeal came on for hearing on September 17, 1954. The guardian had made a written motion to dismiss. The trial judge on October 4, 1954, granted the guardian's motion, and the caveator excepted on the ground that the ruling was contrary to law.