Jones v. Smith , 120 Ga. 642 ( 1904 )

Cobb, J.

The court of ordinary is a court of general jurisdiction, and it is not essential that all the facts necessary to give jurisdiction shall appear upon the face of the record. Where the record is silent, the presumption is that all necessary jurisdictional facts appeared, and no collateral attack can be made upon the judgment. Maybin v. Knighton, 67 Ga. 103 ; Stuckey v. Watkins, 112 Ga. 268. On the other hand, where the want of jurisdiction appears upon the face of the record, the judgment, although by a court of general jurisdiction, is void, and is subject to attack at any time by any one whose rights are sought to be affected thereby. Fussell v. Dennard, 118 Ga. 207. See also the very forcible and apt language of Mr. Chief Justice Jackson in Head v. Bridges, 67 Ga. 238. As a general rule, only citizens of the United States resident in Georgia are qualified to act as administrators in this State. Civil Code, § 3365. 'The single exception to this rule is contained in section 3366, which authorizes a citizen of another State, who has a given interest in the estate of the deceased citizen of Georgia, to act as administrator under specified conditions. If the judgment appointing the Joneses administrators of Lamar’s estate showed upon its face, not only that the Joneses were non-residents of Georgia, but that Lamar was also a non-resident at-the time of bis death, then the judgment appointing them as the legal representatives of the estate would be absolutely void, there being no authority to appoint a non-resident administrator upon the estate of a non-resident. The record does not distinctly show that Lamar was a non-resident. In fact the statements in the record are equivocal.' They show that he was at one time a resident of Georgia, and they are not altogether inconsistent with his having been such resident at the time of his death. The presumption being in favor of the validity of the judgment, this ambiguity will be relieved by a construction which- makes him a resident of this State at the time of his death. Such being the case, the judgment appointing the Joneses was not void. Under the terms of the Civil Code, § 3366, when a non-resident is appointed administrator he is required to give a bond with good security, and the sureties must be resident citizens of this State, liable to be proceeded against in the first instance in the event of a devastavit by the non-resident administrator. We will not now determine whether the act of 1887, contained in the Civil Code, § 2142, which authorizes non-resident fidelity companies to become sureties on official bonds, had .the effect to repeal the provisions of section 3366 in reference to who should be the surety xipon the bond of a non-resident administrator. See, however, in this connection, Sutton v. Hancock, 118 Ga. 437 (7). If a judgment appointing an administrator is valid, no one other than a person interested in the assets of the estate can be heard on the question of the legality or sufficiency of the security which the ordinary has accepted on the bond of the administrator.

The judgment appointing the Joneses administrators on the estate of Lamar being regular .upon its face, it can not be collaterally attacked. It now becomes material to determine whether the plaintiffs can derive any advantage from the proceediug which they have instituted in the court of ordinary to vacate and set aside the judgment appointing the administrators. The plaintiffs are not heirs, legatees, or creditors of Lamar’s estate; and if they have any interest in the assets of that estate, that fact has not .been made to appear. They would, therefore, not have been heard as caveators when the application for letters of administration was pending. Williams v. Williams, 113 Ga. 1006 ; Towner v. Griffin, 115 Ga. 966. They are not in any sense parties to the judgment, nor are they in privity with any one who was or could have been a party thereto. “A third person not a party to the record can not go into a court and move to set aside a judgment -which is not against him.” _ Merchants Bank v. Haiman, 80 Ga. 624; Suwannee Turpentine Co. v. Baxter, 109 Ga. 603. The proceeding instituted in the court of ordinary would not have availed the plaintiffs, and therefore the pendency of this proceeding was no reason for enjoining the suit for the recovery of the land. If it could be made to appear that the judgment of the cpurt of ordinary appointing the Joneses administrators was the result of a fraud perpetrated upon that court by a false representation that Lamar was a resident of the State at the time of his death, it may be that the defendants would have a remedy by a direct proceeding in equity to set aside this judgment on the ground of fraud. See, in this connection, Cowart v. Simpson, 74 Ga. 697; Langmade v. Hamilton, 89 Ga. 441; Phillips v. James, 115 Ga. 426. But on this question we now express no opinion. On the case as presented to the judge it was error to grant an injunction.

Judgment reversed.

All the Justices concur.