MARCH 18, 1948.
Cancellation, etc. Before Judge Pratt. Gwinnett Superior Court. November 15, 1947.
Marvin A. Allison and Charles C. Pittard, for plaintiffs in error.
W. L. Nix, contra.
1. The motions to dismiss the writs of error are denied.
2. A judgment setting apart a year's support where all the proceedings are regular can not be attacked for fraud on grounds that might have been interposed by interested parties prior to the judgment.
3. Where a final judgment is rendered setting apart a year's support, such judgment is not subject to collateral attack except for causes apparent on the face of the record. In this case all the proceedings were regular, and jurisdiction was shown in the ordinary rendering the judgment.
Nos. 16108, 16109. MARCH 18, 1948.
J. A. Brownlee and seven others, children of Mrs. Mary Susan Brownlee, filed two suits in the Superior Court of Gwinnett County. In one action, Mrs. Mary Susan Brownlee and L. B. Ford (Mrs. Ford being a sister of the plaintiffs) were named as defendants; and in the other, Mrs. Mary Susan Brownlee and A. P. Brownlee (brother of the plaintiffs) were named as defendants. The two actions were identical except that the two deeds made by Mrs. Mary Susan Brownlee, and attacked by the plaintiffs, conveyed different tracts of land. In brief the plaintiffs alleged: T. W. Brownlee, father of the plaintiffs and husband of Mrs. Mary Susan Brownlee, died intestate on March 5, 1943, leaving certain real and personal property. After the funeral on March 7, 1943, all the parties met at the home of the deceased for the purpose of agreeing on a disposition of the estate of the deceased. It was agreed that there should be no administration upon the estate, but that the widow (mother of the plaintiffs) should live on the farm and have so much of the personal property as might be necessary for her support, it being agreed that the real estate would be divided upon the death of Mrs. Mary Susan Brownlee. The plaintiffs "had the utmost love, respect, and confidence in their said mother and believed she would abide by and carry out the provisions of said agreement. . . Mrs. Mary Susan Brownlee, did nevertheless, on the 10th day of March, 1943, . . file an application with the ordinary of Gwinnett County for a year's support." The appraisers made their return and set aside $300 in money and the home place of 80 acres, which they valued at $700. The actual value of the farm at the time of its appraisal was from $4000 to $5000. Other cash assets received by Mrs. Brownlee made a total valuation of $6000. She induced the appraisers to set aside to her the entire estate and represented that $1000 was a fair value for it. At the time of the application for year's support, there was no representation on the estate, and the plaintiffs did not know of the application for year's support and had no notice or knowledge of it until long after it was set aside. On August 1, 1945, Mrs. Mary Susan Brownlee conveyed 40 acres of the home place to L. B. Ford, and the other 40 acres to A. P. Brownlee. The consideration of $1200 for each tract was "grossly inadequate," the property being worth from $2000 to $2500 at the time the deed was made. The provision for the support and maintenance of Mrs. Brownlee was made at her special instance and request. The application for year's support, "made within 3 or 4 days after said agreement," and the purchase of the land by the defendants with full knowledge of all these facts, "taints" all of the transactions with fraud, and the plaintiffs have been defrauded thereby. The application for year's support, the return of the appraisers, and the judgment of the ordinary, are null and void, since no order for citation was ever entered and no citation was ever issued and published as required by law. The plaintiffs prayed that the entire proceedings in the court of ordinary, setting aside a year's support to Mrs. Mary Susan Brownlee, be declared null, void and of no effect, and that the warranty deeds made by her to the lands set aside to her be cancelled, and for other relief.
Mrs. Brownlee in her answer denied that any agreement had been made as alleged. She asserted that: The year's support proceedings were regular. The plaintiffs had notice thereof, and notice of the hearing on the return of the appraisers was duly published in the legal organ of the county. The year's support was absolutely necessary for her support. She made other allegations contradicting the allegations of the plaintiffs as to the value of the estate.
The jury returned a verdict for the plaintiffs, and the defendants filed a motion for new trial. The exception here is to the judgment overruling the motion for new trial.
1. Identical motions were made to dismiss the bills of exceptions, it being the contention of the movants that "there is no authority of law authorizing plaintiffs in error to sue out two separate bills of exceptions to the overruling of one motion for new trial in one case." The motions involve the jurisdiction of this court to pass upon the assignments of error, and it is the duty of this court, either with or without motion, to determine its jurisdiction in each case.
The motions quote extensively from the record for the purpose of showing that the two bills of exceptions result from the overruling of one motion for new trial. The two actions filed by the defendants in error in the court below are identical in allegations relied upon for recovery. In one instance, the mother and the husband of a sister of the plaintiffs are made parties defendant, and in the other case the mother and a brother of the plaintiffs are named as defendants. It is contended that prior to the trial the presiding judge passed an order reciting that by agreement of counsel the two cases were consolidated and that they became one case, and that only one bill of exceptions could be certified by the trial court.
After stating the style and number of each case, the trial judge passed the following order: "By consent of all parties to the two above-stated cases, expressed orally in open court by their respective counsel, the said two cases are consolidated and shall henceforth proceed as one case and it is so ordered and adjudged." The issues made by the pleadings and evidence were submitted to the jury in the form of questions in writing, in which each original case was properly styled and numbered, followed by the questions submitted. The judgment referred to the two original cases by name and number. The motion for new trial and the amended motion for new trial set out the name and style of each of the original cases, together with its docket number.
The order of the trial court, that "said two cases are consolidated" and they "shall henceforth proceed as one case," construed with the preservation of the identity of the two causes of action by names of parties and numbers of the cases in the court below, clearly shows that the consolidation was for the purpose of further proceedings in the trial court and expediting the business of the trial court.
In Futch v. Mathis, 148 Ga. 558 ( 97 S.E. 516), it was held: "Two separate actions of ejectment were brought against two defendants. By agreement of counsel they were consolidated as one case, and were thus tried, and separate verdicts and judgments were rendered in each case in favor of the plaintiffs. By agreement of counsel representing both suits, motions for new trial were consolidated and heard as one motion upon one record, and there is but one judgment overruling the two motions, and but one bill of exceptions is in this court. Held, that each of the defendants had the right to except to the overruling of the motion for new trial in his own case. But the consolidation of the two motions for new trial, and the overruling of the motions in one judgment did not authorize the two defendants to unite in one bill of exceptions to review judgments in two distinct cases by one writ of error."
Under the rule laid down in Futch v. Mathis, supra, the motions to dismiss are without merit. The decisions of this court in O'Malley v. Wilson, 182 Ga. 103 ( 185 S.E. 109), and McCrary v. Salmon, 192 Ga. 313 ( 15 S.E.2d 442), are not in conflict with any ruling here made.
2. The plaintiffs in the trial court (defendants in error here) were evidently relying upon the provisions of the Code, § 37-219, as follows: "The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the petitioner." The plaintiffs did not contend by any allegation in their complaint that the Court of Ordinary of Gwinnett County was not a court of competent jurisdiction to pass upon the application for year's support for the widow, Mrs. Mary Susan Brownlee. Such contention would have been without merit, if made, since the petition clearly showed that the deceased was a resident of Gwinnett County at the time of his death, his estate was located in that county, and the widow resided therein. The petition did allege, however, that there was no order for citation and no citation published. This allegation was undeniably disproved. A certified copy of the year's support proceedings, together with the published notice, was introduced in evidence, and counsel for the plaintiffs admitted in open court in the progress of the trial that citation had been duly published for four weeks preceding the judgment of the ordinary setting aside the year's support. The oral testimony of the plaintiffs clearly showed that a part of them, at least, had actual notice of the application. But whether the plaintiffs had actual notice or not, the law was complied with as to notice by publication of the citation. No personal service or notice is required where there is no administration on the estate of the deceased, as was true in this case. Code, § 113-1002; Goss v. Greenaway, 70 Ga. 130.
The plaintiffs alleged that the application for year's support and the deeds thereafter made by the widow were "tainted" with fraud, and that the plaintiffs have been thereby defrauded. This contention must rest upon the alleged contract claimed to have been made by the plaintiffs with the widow, and denied by her. If such a contract or agreement was made as claimed by the plaintiffs, they should have urged such contract in support of timely and proper objections to the application for year's support.
In Fitzgerald v. Bowen, 114 Ga. 691 ( 40 S.E. 735), it was held: "One who had full knowledge of the pendency of a case in which he had a direct pecuniary interest, and neither sought to become a party thereto nor made any effort to intervene therein, so as to protect his rights, can not, after the rendition of a judgment in favor of the plaintiff in such suit, maintain an equitable petition to set such judgment aside or restrain its enforcement."
In Reynolds v. Norvell, 129 Ga. 512 ( 59 S.E. 299), this court held: "A judgment approving the return of commissioners setting aside a year's support, where all the proceedings are regular, can not be attacked as fraudulent because interested parties could have successfully resisted the judgment had their interposed timely objection."
In Beavers v. Cassells, 186 Ga. 98 ( 196 S.E. 716), it was held: "Equity will not intervene to set aside a judgment of a court of competent jurisdiction, which might have been prevented except for the negligence of the complaining party." See also; Groover, Stubbs Co. v. Brown, 118 Ga. 491, 493 ( 45 S.E. 310); Beddingfield v. Old National Bank Trust Co., 175 Ga. 172 ( 165 S.E. 61); Rawleigh Co. v. Seagraves, 173 Ga. 459 ( 173 S.E. 167); Hurt Building v. Atlanta Trust Co., 181 Ga. 274, 287 ( 182 S.E. 187).
The evidence in this case clearly established that the proceedings setting aside the year's support were regular, and that notice was given in the manner required by law. The contract alleged would not entitle the plaintiffs to any relief in a court of equity, since the alleged contract could have been urged in timely and proper proceedings to contest the widow's right to a year's support. See McLean v. McLean, 51 Ga. App. 751 ( 181 S.E. 707); Mathews v. Mathews, 64 Ga. App. 580 ( 13 S.E.2d 843).
3. There is another rule of law that precludes any recovery by the plaintiffs in this case. The Code, § 110-708, provides: "The judgment of a court of competent jurisdiction may 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." This court construed the provisions of this section as applied to judgments of the court of ordinary in setting apart a year's support in Tabb v. Collier, 68 Ga. 641, 643, where it was held: "Every presumption is in favor of their [ordinarys'] judgments, nor are they to be collaterally attacked except where the record shows a want of jurisdictional facts." And in Goss v. Greenaway, supra, with reference to proceedings to set apart a year's support, it was held in part: "when the final judgment of that court [ordinary's] has been rendered in the case, it is too late to attack it, especially before another court, except for causes apparent on the face of the record, showing a want of jurisdiction either of the person or subject-matter."
Tabb v. Collier, supra, and Goss v. Greenaway, supra, were cited in Riddle v. Shoupe, 147 Ga. 387 ( 94 S.E. 236), where the rule was again stated that the judgment of the ordinary setting apart a year's support is not subject to collateral attack except where the record discloses a want of jurisdictional facts. See also Smith v. Smith, 187 Ga. 743, 745 ( 2 S.E.2d 417), and authorities cited.
Since the record before this court clearly shows that the Ordinary of Gwinnett County, where the year's support was set apart, had jurisdiction, and further shows that the proceedings were regular in every respect, there were no material controversial facts for the jury to pass upon, and the verdict for the plaintiffs is without evidence to support it.
Judgments reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.