Davis v. Melton

181 S.E. 300, 51 Ga. App. 685, 1935 Ga. App. LEXIS 444

• Court: Court of Appeals of Georgia
• Decided: July 26, 1935
• Docket: 24469, 24476
• Status: Published

Opinions

Sutton, J.

Love Melton died intestate on March 28, 1930, at Langley, South Carolina. It is contended that at the time of his death Lydia Melton was his lawful wife and only heir at law, and that he was then a resident of Putnam county, Georgia, having left there temporarily to go to South Carolina for the purpose of procuring work. W. E. Melton, a brother of the deceased, applied for and obtained letters of administration on Love Melton’s estate in South Carolina: Thereafter Mrs. Lydia Melton filed her equitable petition against W. E. Melton in McDuffie superior court, where he then resided, in which she attacked his appointment as administrator in South Carolina as being fraudulent, and sought to have the same declared void and set aside, and prayed judgment against him for the amount of an insurance policy on the life of Love Melton, which the defendant had collected by virtue of his being appointed administrator in South Carolina. On September 9, 1931, a verdict and decree were obtained in said court in favor of Mrs. Lydia Melton. Execution issued thereon and was entered on the general execution docket of Putnam county, Georgia. In November, 1931, W. A. Andrews, the county administrator of Putnam county, was, upon application of Mrs. Lydia Melton, granted by the ordinary of that county temporary letters of administration on the estate of Love Melton, and Mrs. Lydia Melton transferred and assigned the execution against W. E. Melton to said Andrews. Andrews, as such temporary administrator, brought suit in Putnam superior court on the said judgment against W. E. Melton and against the United States Fidelity & Guaranty Company, the surety on the administrator’s bond executed by W. E. Melton in South Carolina. On January 5, 1932, Andrews, as such county administrator, was appointed permanent administrator of the estate of Love Melton, and the action was so amended as to proceed in the name of Andrews as permanent administrator. On May 7, 1932, the petition was again amended by striking W. A. Andrews as a. plaintiff and substituting W. C. Davis as plaintiff, it being set up that Andrews resigned as county administrator and his resignation was accepted by the ordinary of Putnam County, and that W. C. Davis had been appointed county administrator in his place, qualified as such, and that letters had been duly issued to him, and that said Davis was now the duly authorized and acting administrator on the estate of Love Melton. ■

The petition was dismissed on general demurrer, and this court reversed that judgment. Por a more complete statement of the allegations of the petition see Davis v. Melton, 46 Ga. App. 639 (168 S. E. 320).

Before this case was reached for trial, after being reinstated, when the remittitur of this court reached the trial court, the plaintiff demurred to the answer filed by the defendant surety company, the demurrer was overruled, and exceptions pendente lite were filed. The surety company filed an amendment to its answer, which was demurred to by plaintiff; and to the order overruling the demurrer the plaintiff filed exceptions pendente lite. Plaintiff tendered an amendment to the petition, which was disallowed in part by the trial judge, and to this order the plaintiff excepted pendente lite. The trial judge overruled a demurrer interposed by the surety company, and error is assigned thereon in the cross-bill of exceptions. The surety company also assigns error therein on the allowance by the trial judge of a part of the plaintiff’s amendment above referred to.

The case proceeded to trial, and from the evidence introduced by the plaintiff the following facts affirmatively appeared: The action was originally instituted in the name of W. A. Andrews, as temporary administrator of the estate of Love Melton, and while the action was pending W. A. Andrews was appointed permanent administrator on the estate of said deceased, and made a party plaintiff as such permanent administrator by appropriate order of the court. On November 16, 1931, Mrs. Lydia Melton filed in the court of ordinary of Putnam County an application asking that W. A. Andrews, county administrator of said county, be appointed as administrator of the estate of said Love Melton, and on that day the ordinary passed an order providing “that said W. A. Andrews, county administrator, be and he is hereby appointed temporary administrator on said estate, and that letters as such issue to him upon his taking the oath and complying with the law in such cases made and provided.” The oath of Andrews and the temporary letters were then introduced in evidence. On January 5, 1932, W. A. Andrews was, by order of the ordinary, appointed permanent administrator on the estate of said Love Melton. On May 2, 1932, W. A. Andrews tendered to the ordinary of Putnam County his resignation as county administrator, to take effect immediately.' On the same day the ordinary passed this order: “The above and foregoing resignation of W. A. Andrews, as county administrator of Putnam County, read and considered, and accepted, and the said W. A. Andrews is from and. after this date relieved and discharged from any and all of the duties of said office.” On May 2, 1932, W. C. Davis filed in the court of ordinary of said county, his petition in which he set up that he was a resident of said county for more than a year and was more than twenty-one years old, that the office of county administrator of Putnam county was vacant on account of the resignation of W. A. Andrews, which resignation was accepted by the ordinary, and prayed for an order appointing him county administrator of Putnam County for the unexpired term of W. A. Andrews. The ordinary of said county then on said May 2, 1932, passed an order appointing W. C. Davis county administrator of Putnam County, to hold his office until the first Monday in March, 1934, and until appointment and qualification of his successor, upon his giving bond with good security in the sum of $5000. On May 5, 1932, said W. C. Davis took oath as county administrator. On May 4, 1932, he executed a bond as such in the sum of $5000, which was approved by the ordinary on May 5, 1932.

It appeared that on May 7, 1932, the petition in this case, as above set out, was amended by striking Andrews as plaintiff and substituting W. C. Davis, administrator, as 'plaintiff in his stead, and alleging that plaintiff “was acting as the administrator on the estate of Love Melton, deceased, under appointment of Putnam court of ordinary, and that letters of permanent administration had been duly issued to him on said estate . . ; that since said time he has tendered his resignation as county' administrator, and that ■the same has been accepted by the ordinary of Putnam County, Georgia, . . that W. C. Davis has been appointed county administrator for Putnam County, Georgia, and that he has qualified as such, and that letters have been duly issued to him, and that said W. C. Davis is now the duly authorized and acting administrator on the estate of Love Melton, deceased;” and it was prayed “that W. C. Davis, administrator of the estate of Love Melton, deceased, be substituted in the place of W. A. Andrews, administrator of the estate of Love Melton, deceased, as a party plaintiff in said case.” Thereupon the court passed an order allowing said amendment and providing “that said W. C. Davis, administrator of the estate of Love Melton, deceased, be and he is hereby made a party plaintiff in said case, in the place of W. A. Andrews, the former administrator on said estate.”

On August 24, 1932, the court of ordinary passed this order: “Love Melton, late of said county, in which he died resident, having departed this life, and one W. A. Andrews, county administrator, having been duly appointed by the court of ordinary, administrator of said estate of Love Melton, deceased, who having resigned his position as county administrator before finishing the administration of said Love Melton estate, and the court of ordinary of said county having at a regular term thereof appointed W. C. Davis, administrator de bonis non of the estate of Love Melton, deceased, as county administrator, on condition of Ms having given administrator’s bond as county administrator, and taking the usual oath, and the said W. C. Davis having given the required bond as county administrator and having fully complied with the directions of the court, this is to show that said W. C. Davis is fully empowered and required by law to do all and singular the duties of administrator de bonis non of the estate of Love Melton, deceased, to administer according to law the estate remaining unadministered by the former administrator, W. A. Andrews, county administrator, deceased, and in all respects is authorized to discharge the duties and exercise the power given by law to an administrator de bonis non of the estate of Love Melton, deceased. It appearing as aforesaid, that the said W. C. Davis, county administrator, applied for and was appointed permanent administrator de bonis non on the estate of the said Love Melton, deceased, and qualified as such on the 5th day of May, 1932, and it further appearing that no letters of administration were'then and there issued to him as the law provides, it is therefore ordered that such letters be and are hereby issued to him, nunc pro tunc, as of the date and time of his said qualification, May 5th, 1932.”

It affirmatively appealed from the plaintiff’s evidence that W. A. Andrews was county administrator until he resigned on May 2, 1932, that as such he had been appointed administrator of the Love Melton estate, and that he had not finished the administration of this estate at the time of his resignation as county administrator. W. C. Davis applied for appointment and was appointed county administrator in the place of W. A. Andrews on May 2, 1932, the same date on which Andrews resigned, and qualified as such on May 5, 1932. W. C. Davis, as county administrator, was appointed administrator de bonis non of the Love Melton estate, and qualified as such administrator on May 5, 1932. So it was impossible for the citation required by law for his appointment as administrator de bonis non to have issued and been published between May 2, 1932, and May 5, 1932. It affirmatively appeared from the records of the court of ordinary introduced in evidence by the plaintiff that the appointment of W. C. Davis as administrator de bonis non of the estate of Love Melton was void. It does not appear that the said Andrews ever resigned his trust as administrator of the estate of Love Melton, otherwise than by resigning as county administrator. At the conclusion of the evidence the trial judge passed this order: “Defendant having moved a nonsuit on the ground that there is no party plaintiff, and it appearing that W. C. Davis has never been legally appointed administrator on the estate of Love Melton, the said motion is granted and a nonsuit ordered.” To this judgment the plaintiff excepted.

1. If from any cause an estate be unrepresented, and not likely to be represented, the ordinary shall vest the administration thereof in the county administrator, a citation being first published for four weeks, as in other cases. Code of 1933, § 113-1306; Civil Code (1910), § 3957. The publishing of the citation is essential, and its purpose is to afford notice and opportunity to be heard to those interested in the estate. McGehee v. Ragan, 9 Ga. 135; Rusk v. Hill, 117 Ga. 722 (6), 730 (6) (45 S. E. 42); Head v. Bridges, 67 Ga. 227.

2. “The judgment of a court having no jurisdiction of the person and subject matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code (1910), § 5964; Code of 1933, § 110-709. The present action is distinguishable in principle from those to which sections 110-701, 110-708 of the Code of 1933 (Civil Code of 1910, §§ 5963, 5968), are applicable, and such cases as Sharpe v. Hodges, 121 Ga. 798 (49 S. E. 775), Medlin v. Downing Lumber Co., 128 Ga. 115 (57 S. E. 232), and Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237), in that the want of jurisdiction appears on the face of the record. Jones v. Smith, 120 Ga. 642 (2) (48 S. E. 134). The judgment of appointment is attacked in this case by the surety on the administration bond of the “pseudo administrator” as being void and a nullity.

3. An ordinary has no jurisdiction to appoint an administrator where the law requires a citation, except after the issuance of citation, and publication as required by law. Where citation has not issued and been advertised as required by law, the judgment appointing a person administrator de bonis non is a nullity, and can be collaterally attacked in any proceeding in which the judgment or letters of administration issued thereon are relied upon as establishing the legal appointment of an administrator, where this affirmatively appears from the record introduced to establish his appointment. Torrance v. McDougald, 12 Ga. 526; Perkins v. Attaway, 14 Ga. 27; Barclay v. Kimsey, 72 Ga. 725; Rusk v. Hill, supra; Fussell v. Dennard, 118 Ga. 270 (45 S. E. 247); Sturtevant v. Robinson, 133 Ga. 564 (6) (66 S. E. 890); Bell v. Love, 72 Ga. 125; New York Life Ins. Co. v. Gilmore, 40 Ga. App. 431 (2) (149 S. E. 799). So where it appears from the evidence introduced by the plaintiff administration that the application for appointment and the order of appointment were made at the same time, and the administrator qualified and letters were issued to him within three days of his application for appointment; and therefore, without the required citation and publication, the judgment appointing and the letters of administration were nullities. It is essential that notice be given so that objections may be made. The ' citation and publication thereof is a jurisdictional prerequisite to the validity of the judgment appointing the administrator. Rusk v. Hill, supra; Head v. Bridges, supra.

4. Furthermore, plaintiff’s evidence discloses that W. A. Andrews, the original plaintiff in this ease and former county administrator of Putnam county, resigned as county administrator and that W. C. Davis was appointed county administrator in his place, but such evidence does not disclose that W. A. Andrews ever resigned as administrator of the estate of Love Melton.. It is necessary that the county administrator be granted letters of administration by the ordinary for each ¡^articular estate. As regards estates represented by him, he is to be considered as any other administrator. Bailey v. McAlpin, 122 Ga. 616 (50 S. E. 388); Bailey v. McAlpin, 121 Ga. 111 (48 S. E. 699). When he ceases to be county administrator, he does not thereby resign his administratorship upon a particular estate, but remains administrator thereof until he is .discharged or his letters are revoked. Civil Code (1910), § 3963, Code of 1933, § 113-1313; Gibson v. Carreker, 83 Ga. 46 (9 S. E. 134); Bailey v. McAlpin, 122 Ga. 616, supra; Beale v. Hall, 22 Ga. 431. When an administrator desires to resign his trust from any cause, he shall petition the ordinary, setting forth his reasons and the name of a suitable person qualified and entitled to serve in his place, and citation shall issue requiring the next of kin to show cause why the resignation should not become effective and the new administrator appointed. Civil Code (1910), §§ 3957, 4095, Code of 1933, §§ 113-1306, 3306. The publication of the application and citation is necessary, in order for the resignation to become effective and valid. Head v. Bridges, supra.

5. A court of ordinary is a court of general jurisdiction, and therefore the facts which give it jurisdiction need not appear on the face of the judgment or record; for instance the publication of a citation for appointment or removal of an administrator need not appear upon the face of the judgment; and where nothing to the contrary appears, it will be presumed that all of the essential prerequisites have been complied with before the ordinary entered his judgment or order. Truluck v. Peeples, 1 Ga. 3, 5; Stell v. Glass, 1 Ga. 475, 486 (4); Barclay v. Kimsey, supra. “If, however,” such judgments “carry their death wound on their face,” that is, if the fact which alone gives jurisdiction be recited and from that fact it appears that the court has no jurisdiction on the face of the record, then the judgment is a nullity; that is where it appears that application for administration and appointment were dated the same day and that oath was made, bond executed, and letters issued just three days thereafter, it would be an impossibility that the citation was published for four weeks as required by law. Head v. Bridges, supra; Sturtevant v. Robinson, supra. From the judgment of appointment in this ease, the letters of administration, and records introduced in evidence, appeared the very thing which made the judgment of appointment a nullity, the impossibility for the citation to have been published as required by law.

6. Applying the foregoing rulings to the evidence for the plaintiff in this case, it clearly appears that W. C. Davis was not the legal administrator de bonis non of the estate of Love Melton, and, therefore, the trial court properly granted a nonsuit. Lay v. Sheppard, 112 Ga. 111, 114 (3) (37 S. E. 132).

7. Dnder the above ruling, it is unnecessary to pass upon any of the other assignments of error made by the plaintiff in error, or upon the assignment of error in the cross-bill, of exceptions sued out by the defendant surety company.

Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.

Guerry, J. (designated to participate in this case in place of Jenlcins, P. J., disqualified) concurs in the judgment. Stephens, J., dissents.