Crawford v. Watkins

Supreme Court of Georgia

Crawford v. Watkins

45 S.E. 482, 118 Ga. 631, 1903 Ga. LEXIS 641

DecidedAugust 14, 1903

StatusPublished

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Bluebook

Crawford v. Watkins, 45 S.E. 482, 118 Ga. 631, 1903 Ga. LEXIS 641 (Ga. 1903).

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Opinion

Lamar, J.

The order dismissing the application for the assignment of dower is not dated except by the entry, “September term, 189.7.” The court takes judicial cognizance of the fact that the fall term during that year was required to convene September 27, 1897. It can not know how long the session continued, and, in the absence of an averment as to the exact date when the order of dismissal was entered, or an affirmative allegation that the present petition, filed October 1, 1900, was brought within three years from the date of the dismissal, must sustain the demurrer, on the ground that it does not appear to have been filed within the three years period fixed for filing bills of review. Civil Code, §§ 3770, 4862. • The motion to reinstate was not necessarily confined to facts appearing on the face of the record, but matters dehors the same might have been alleged ; and the judgment of this court (Watkins v. Brizendine, 111 Ga. 458) that the case was improperly reinstated is conclusive upon all matters then alleged, or which could have been alleged, including any question of fraud or mistake causing the order of dismissal. It is true that after.the application had been dismissed the judge of the superior court reinstated the proceeding; but when that judgment of reinstatement was reversed, it left the order of dismissal of full force and effect, and any proceeding to renew under the Civil Code, §§ 3786, 3787, must necessarily have been brought within six months from the date of that dismissal; not within six months after the termination of an unsuccessful proceeding seeking to set aside the judgment of dismissal. Otherwise the period of limitations could be indefinitely prolonged. An order of dismissal may have remained of force for years. It would only be necessary to move to reinstate, and, on the failure of such a motion, move within six months to renew. The prayer in the present petition, filed on October 1,1900, for the appointment of new commissioners to assign dower, can not be granted, for the reason that the husband of the petitioner died on January 11, 1891, more than seven years before the institution of the present proceeding to have dower assigned. Civil Code, § 4689, par. 4.

Judgment affirmed.

By five Justices.

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Lamar, J.

The order dismissing the application for the assignment of dower is not dated except by the entry, “September term, 189.7.” The court takes judicial cognizance of the fact that the fall term during that year was required to convene September 27, 1897. It can not know how long the session continued, and, in the absence of an averment as to the exact date when the order of dismissal was entered, or an affirmative allegation that the present petition, filed October 1, 1900, was brought within three years from the date of the dismissal, must sustain the demurrer, on the ground that it does not appear to have been filed within the three years period fixed for filing bills of review. Civil Code, §§ 3770, 4862. • The motion to reinstate was not necessarily confined to facts appearing on the face of the record, but matters dehors the same might have been alleged ; and the judgment of this court (Watkins v. Brizendine, 111 Ga. 458) that the case was improperly reinstated is conclusive upon all matters then alleged, or which could have been alleged, including any question of fraud or mistake causing the order of dismissal. It is true that after.the application had been dismissed the judge of the superior court reinstated the proceeding; but when that judgment of reinstatement was reversed, it left the order of dismissal of full force and effect, and any proceeding to renew under the Civil Code, §§ 3786, 3787, must necessarily have been brought within six months from the date of that dismissal; not within six months after the termination of an unsuccessful proceeding seeking to set aside the judgment of dismissal. Otherwise the period of limitations could be indefinitely prolonged. An order of dismissal may have remained of force for years. It would only be necessary to move to reinstate, and, on the failure of such a motion, move within six months to renew. The prayer in the present petition, filed on October 1,1900, for the appointment of new commissioners to assign dower, can not be granted, for the reason that the husband of the petitioner died on January 11, 1891, more than seven years before the institution of the present proceeding to have dower assigned. Civil Code, § 4689, par. 4.

Judgment affirmed.

By five Justices.

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Bluebook (online)

45 S.E. 482, 118 Ga. 631, 1903 Ga. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crawford-v-watkins-ga-1903.

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