FEBRUARY 10, 1942. REHEARING DENIED MARCH 14, 1942.
Equitable petition. Before Judge Humphries. Fulton superior court. October 13, 1941.
O. C. Hancock, for plaintiff in error.
Alex. McLennan and Warren W. Glasgow, contra.
1. A petition praying for extraordinary equitable relief will not be dismissed on motion of the defendant on the ground that there had been no legal service upon him, it appearing that, although a resident of the county where the suit was filed, he had been temporarily removed to another county where he had been placed in a sanitarium; the judge on motion of complainant having ordered a second original to issue directed to the sheriff of the latter county, who personally served the defendant with a copy of the petition and process, this being followed by the appointment of a guardian ad litem, who signified in writing his agreement to act as such.
2. A motion to dismiss an action on the ground that there was no equity in the petition, and that it failed to state a cause of action, will not be sustained when the suit in substance alleges that the defendant is the executor of an estate consisting of money and real estate, a considerable portion of the realty consisting of negro rental property; that complainant also owns rental property which had been placed in his hands to manage, the rents from which the defendant has collected and intermingled with his own, he also owning property of a like character; that no one is now in charge of the same except the defendant, who is complainant's brother, an unmarried man with no children; that defendant is a raving maniac, incarcerated in Fulton County jail; that it is imperative that he be placed in a sanitarium for treatment (and by amendment alleging that since the filing of the suit he had been moved to a sanitarium in Cobb County); that their mother, his testatrix, left money in various banks, which has been commingled with his own funds; the suit being against him individually and as executor, and containing prayers that a receiver be appointed to take charge of the properties, to pay out such funds as the court may deem just and proper for his hospitalization; and for general relief.
No. 14002. FEBRUARY 10, 1942. REHEARING DENIED MARCH 14, 1942.
On December 6, 1938, a petition was filed in Fulton superior court by Mrs. Lorena White Glasgow, a resident of Tyrone, Pennsylvania, and Mrs. Lewis H. White, a resident of Fulton County, Georgia, against Norman A. White and Lewis H. White, alleging that Mrs. Warren D. White, the mother of Mrs. Lorena White Glasgow and of the defendants, died on November 15, 1938, leaving a will which had been offered for probate, and in which Norman A. White was named as executor; that the plaintiff and said two defendants are the only children of the testatrix; that since her death Norman A. White "has completely lost his mind and is a raving maniac, incapable of managing his own affairs or looking after himself;" that he is incarcerated in Fulton County jail, and it is imperative that he be placed in a sanitarium for treatment; that Lewis H. White, the husband of plaintiff Mrs. Lewis H. White, is "temporarily incapacitated and incompetent, because of the excessive use of alcohol and different derivatives of barbituric acid, such as sodium amytal and other potent drugs, including morphine and other opiates;" that the property left by the testatrix consists of many houses, as well as money in various banks in Atlanta; that the same has been commingled with funds of the defendants and of petitioner Mrs. Glasgow; and that petitioner is part owner of funds deposited "under the bank account of Mrs. Warren D. White or Norman A. White." After specifying and describing real estate belonging to defendants Norman and Lewis White separately, as well as realty left by the testatrix and devised to her children and others, some to them separately and some jointly, the petitioners prayed that a receiver be appointed to take charge of all the property belonging to both defendants individually and the property of the estate, and that guardians ad litem be appointed for Norman A. White and Lewis H. White. The following day an order was passed appointing William P. Kennedy as receiver; and Mrs. Glasgow filed an amendment to her petition, stating that Mrs. Lewis H. White was stricken as a party plaintiff and Lewis H. White stricken as a party defendant. On January 6, 1939, Mrs. Glasgow amended her petition, alleging that Norman A. White had been moved out of Fulton County into a sanitarium in Cobb County; that it had been impossible to serve him, but that he was only temporarily residing in Cobb County; and that he is a resident of Fulton County. She prayed that a second original be directed to the sheriff of Cobb county for service upon him. It was so ordered, and he was served by the deputy sheriff of said county on January 11, 1939. On March 17, 1939, Mrs. Lorena White Glasgow filed a motion in which it was alleged that service had been perfected upon Norman A. White by delivering to him in person a copy of the proceeding, and the amendment and order making him a party; and she prayed that an appropriate order be passed appointing a guardian ad litem for him. Such order was passed. Charles E. Hall was appointed guardian ad litem, and he acknowledged service of the petition and amendment, and on the same day filed an answer admitting all the allegations of the petition except the two paragraphs with reference to the drunken and incompetent condition of defendant Lewis H. White; admitted the mental incompetency of Norman A. White since before the filing of the petition, and averred that he had kept him in a hospital for several weeks, and that it was necessary that the receivership be made permanent. On May 24, 1939, the receiver filed a petition recommending that an order be granted transferring to the superior court all matters relating to the administration of the estate of the testatrix, because of the mental incapacity of the executor Norman A. White. It was so ordered, and that the receiver take charge of the property of the defendants and administer the assets of the estate in accordance with the will.
Kennedy, the receiver, Corbett, his attorney, Hall, the guardian ad litem for Norman A. White, and Alex. McLennan, attorney for the plaintiff, were each from time to time, under orders of the court, paid fees for their services during the years 1939 and 1940, such fees aggregating more than $2,000. On May 3, 1940, Mrs. Glasgow filed an amendment in which she alleged that "by inadvertence or oversight" the order of May 24, 1939, failed to make the receivership permanent, and that said order was taken without service having been made upon all of the heirs at law and devisees under the will of Mrs. White; and she prayed that service of the petition be perfected upon Lewis H. White and Norman A. White, and that they show cause why the receivership should not be made permanent. On May 3, 1940, the court ordered that the parties be served and that they show cause why the prayers of the petition should not be granted. Lewis H. White acknowledged service May 4, 1940, and on the same day Charles E. Hall, as guardian ad litem for Norman A. White, acknowledged service. On May 13, 1940, the court passed an order reciting that, "all consenting," Lewis H. White be made a party defendant and Wm. P. Kennedy be appointed permanent receiver. The court had previously, in 1939, passed several orders on petition of the receiver; one authorizing the receiver to sell certain real estate belonging to Norman A. White; another authorizing him to sell sawmill timber, an interest in which belonged to the estate; and to pay a note for $400 given by Norman A. White. On May 16, 1939, the receiver filed his report, showing collections and disbursements, and the amount of the funds on hand. The court ordered the report filed on that date, and authorized the receiver to pay the legal obligations of the estate and Norman A. White. On April 22, 1941, the court authorized the receiver to sell an automobile belonging to Norman A. White.
Norman A. White, individually and as executor of the estate of his mother, the testatrix, filed what he called an intervention on May 13, 1941, in which he denied all allegations of the petition and amendments charging him with mental incompetency to administer the estate as executor; alleged that such allegations were false and fraudulent, and were made for the purpose of defrauding him of his property and the right to act as executor; alleged that at the instance of the plaintiff police officers came to his home, arrested him and locked him in jail, and later, putting handcuffs on him, took him to a sanitarium in Cobb County, and all this while he was in perfect health; recited an order of the court of ordinary issued in March, 1941, vacating the letters of guardianship; and after many such allegations, particularly an allegation that he had never been served with a copy of the petition, he prayed that the receiver be ordered to turn over to him all the assets of the estate and his own property, and account for the money collected from sales and rents, and that all orders and judgments passed before the filing of his intervention be declared null and void. A general demurrer to this intervention was filed by the petitioner; and when the case was called before the motion division of Fulton superior court, the grounds of demurrer to the effect that there was nothing illegal or irregular in appointing a receiver on ex parte hearing, and that the allegations of fraud in procuring the orders complained of were insufficient, were sustained, but the intervention was retained for the purpose of requiring the receiver to make a final report and accounting; the court's order reciting that it then appeared that Norman A. White was fully competent and capable of administering the estate as executor, and that the receivership had served its purpose, and the receiver was directed to turn over to Norman A. White all assets of the estate not administered and still in his possession, and account for his acts and doings by filing a report. On October 13, 1941, the court denied a motion of the intervenor to dismiss the petition as amended and revoke all orders of the court which antedated the filing of the intervention, based on the ground that intervenor individually and as executor had not been served, and that it failed to set forth a cause of action against the defendant; to which judgment Norman A. White, individually, and Norman A. White, executor, excepted, bringing to this court two identical records.
1. Although orders under various circumstances were issued in this case by each of the seven judges of the superior court of the Atlanta Circuit, the sole exception is to the refusal to sustain a motion to dismiss the plaintiff's petition as amended, together with all the (interlocutory) petitions and orders entered by the court. As one of his bases therefor, the movant challenged the legality of the service. The petition was filed on December 6, 1938, in Fulton superior court. Norman A. White was alleged to be a resident of Fulton county. A month later an amendment was filed which recited that at the time the suit was filed Norman A. White was non compos mentis, and that before service could be had upon him he was removed from Fulton County into Cobb County, where he was placed in a sanitarium; the amendment reiterating the statement that he was only temporarily residing in Cobb County, that he was a resident of Fulton County, and that his home and all his personal effects were located in Fulton County. It was prayed that a second original be directed to the sheriff of Cobb County, for service upon him. The court ordered the amendment filed, and three days thereafter ordered that the clerk issue a second original for service upon the defendant in Cobb County by the sheriff of that county. The sheriff executed it by personally serving White with a copy of the petition and process. Later a guardian ad litem was regularly appointed to represent his interest in the litigation. The appointment was in writing accepted, and an acknowledgment of service, with waiver of all further service and notice, was made by the guardian ad litem, and he acknowledged himself a party to the proceeding.
The suit being one for the appointment of a receiver, the superior court of Fulton County had jurisdiction of the subject-matter. It named as defendants two persons, both alleged to be residents of that county. Fulton County, therefore, was the only place where the suit could have been brought. Since upon presentation of the petition the judge appointed a receiver, under the particular facts, the service had to be personal. Code, § 81-213. The fact that Norman A. White was alleged to be non compos mentis did not obviate the necessity for this service. It rather accentuated it; for it has been held that the provision of the Code, § 81-212, which directs how minors shall be served, applies also to lunatics. Scott v. Winningham, 79 Ga. 492 ( 4 S.E. 390). This section provides for personal service. When this has been done, and the requirements followed as to the appointment of a guardian ad litem, and his agreement to serve, the person under disability shall be considered a party to the proceedings. Code, § 81-212. The case could not proceed as against the defendant Norman A. White until he had been served. Confronted with the situation outlined above, was the court helpless? It had jurisdiction both of the subject matter and of the parties. The complainants were praying for relief. Was the court compelled by its inaction to admit its impotency to have personal service perfected merely because a defendant, although residing in the county of the forum, had been removed temporarily into another county? It was said in Devereux v. Atlanta Railway Power Co., 111 Ga. 855 ( 36 S.E. 939), that a court with jurisdiction of the person and subject-matter of an action necessarily has the power to take proper steps to have service duly made. See Mitchell v. Southwestern Railroad, 75 Ga. 398; Coakley v. Southern Railway Co., 120 Ga. 960 ( 48 S.E. 372); Georgia Railroad Banking Co. v. Bennefield, 138 Ga. 670 ( 75 S.E. 981); Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637 ( 79 S.E. 467); Central of Georgia Railway Co. v. Alford, 154 Ga. 853 ( 115 S.E. 771), in several of which the statement above referred to in the Devereux case was cited with approval.
There is an additional reason why the court in the instant case had the power to provide by order that service be made. The Code of 1863, § 4097, pointed out a definite method of serving defendants in all equity cases. It dealt with residents as well as non-residents. It did not make provision for personal service on defendants, although residents of the county where suit was brought, who had been removed temporarily to another county. The section concluded with the words, "And in all cases not embraced within the foregoing provisions, the judge may prescribe for extraordinary service, according to the exigency of each case." There have been two changes only in this section as it stood in the Code of 1863. One was to change the name of a suit in equity from a bill to a petition, with process annexed instead of a subpoena, as under the old practice. The other was as to the mode of service on defendants residing in two or more counties. In recodifying the section, however, the codifiers of the later codes, beginning with the Code of 1895, placed the clause next above quoted, that is, "In all cases not embraced within the foregoing provisions," etc., in a section which deals only with service on non-residents (Code, § 81-204), although the section last referred to immediately follows other Code provisions as to service on residents. Properly construed, the words "not embraced within the foregoing provisions" do not refer merely to the subject-matter of the Code section alone, but as well to the method of service on other defendants in an equity case which are embraced in other preceding sections of the Code. We conclude therefore, that, independently of the power possessed by every court having jurisdiction of the person and subject-matter, there is authority expressly given in the Code for the judge in equity suits, when confronted with a situation not embraced within the provisions of the Code relating to the method of service, to prescribe extraordinary service according to the exigencies of each case. What more appropriate or effective means can be suggested than that adopted by the judge in his order? Counsel for plaintiff in error insists that under previous decisions of this court it has been held that the issuance of a second original and the service of a copy thereof can not be employed in a case such as this, and relies on First National Bank v. Dukes, 138 Ga. 66 ( 74 S.E. 789), and Scott v. Scott, 192 Ga. 370 ( 15 S.E.2d 416). As to the first of these two cases, the defendant had permanently removed from the county at the time the order to serve him was issued. The ground on which the decision was put was, as stated in the opinion, as follows: "If before the time of service the defendants removed from the County of Liberty to Bryan County under circumstances which made this removal to Bryan County a change of their domicile to that County, then the suit could not proceed against them in Liberty County. For, in order to give the court of Liberty County jurisdiction, there should have been a suit pending against the defendants before their removal from the county; and in order to constitute a pending suit at law there must be the filing of a petition and service in pursuance thereof." The statement near the end of the opinion, that "We know of no authority for the issuance of second originals, except where there are two or more defendants joined in the same action, and where one or more resides in the county where the suit is brought, and one or more of the defendants resides in another county," was broader than the facts warranted, and was not necessary to the decision actually made. For instances where service was ordered made by the service of second originals, and declared proper, although not arising in cases where two or more defendants were joined in the same action, one of whom resided in a county other than the one in which the suit was brought, see Jefferson Fire Insurance Co. v. Brackin, supra, and the authorities cited by Chief Justice Fish in the third headnote. Scott v. Scott, supra, was a divorce case where the defendant was alleged to be a resident of Crisp County, where the suit was brought, but was then in Worth County Serving a sentence in the penitentiary. Without any order by the court as to service, the clerk issued a second original directed to the sheriff of Worth County. The Worth County officer served the defendant with a copy. This court held that the service was illegal, it being distinctly stated in that decision that there was no order by the judge providing for any service on the defendant, and no motion by the plaintiff for such an order, and therefore that no question was involved and no decision made as to whether "under the Code, § 81-204, or under any inherent power of the court, the judge could `prescribe extraordinary service according to the exigencies' under the averments of the case, and, if so, when and what service would have been legal and proper." There was no error in refusing to dismiss the petition as amended, on the ground that there had been no legal service.
2. It is also urged that the petition should be dismissed on the ground that it fails to set forth a cause of action, either at law or in equity, against this defendant, in that it affirmatively appears that the plaintiff has a plain, adequate, and complete remedy at law. "Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, § 37-403. Mrs. Glasgow, according to the allegations of the petition, is vitally interested in the estate of which Norman A. White is the executor. She alleges, that he has collected rents belonging to petitioner, and intermingled the same with his own, and kept no account thereof; that her mother left money in various banks which has been by him commingled with his own funds; that both complainant and her brother, Norman A. White, possess rented property which has been in his hands; that he has managed the same and collected the rents therefrom; that no one is now in charge of said property except her brother, who is now insane; and that he is an unmarried man with no children. Among the prayers are that a receiver be appointed to take charge of the properties, and to pay out such funds as the court may deem just and proper for his hospitalization; and for general relief. True the court of ordinary could appoint a guardian for him, whose duty it would be to look after Norman A. White's property; but this could not be done in a day, and in the meantime who would pay for his hospitalization? If unfit to remain executor, he could by the court of ordinary be removed and an administrator de bones non cum testamento annexo be appointed; but in the meantime who would look after the properties of the testatrix?
Against an oral motion to dismiss, the petition contained allegations to justify a court of equity, in the exercise of its discretion, to grant the extraordinary relief sought. Code, §§ 55-301, 55-302. Compare Huggins v. Huggins, 117 Ga. 151, 160 ( 43 S.E. 759); West v. Mercer, 130 Ga. 357 ( 60 S.E. 859); Perdue v. Simmons, 157 Ga. 311 ( 121 S.E. 336).
Judgment affirmed. All the Justices concur.