Helton v. Helton , 47 Ga. App. 845 ( 1933 )

Broyles, C. J.

R. B. Helton, transferee of a promissory note, brought suit thereon against W. H. Helton. W. H. Helton defended on the ground that at the time the note was made he was mentally incapable of making a binding contract. No appearance was made by any person claiming to be the guardian of the defendant W. H. Helton. "Verdict and judgment were rendered in favor of the plaintiff on October 20, 1932. On November 14, 1932, W". H. Helton, through his alleged duly named and appointed guardian, Miss Mattie Helton, filed a motion to set aside the judgment, alleging in part “that the said Miss Mattie Helton became the guardian of the said W. H. Helton and of his property on the 26th day of February, 1918, or more than a year prior to the execution of the note sued upon, and that the note was executed by W. H. Helton and not by his guardian, and that said "W". H. Helton was at that time legally incapable of executing a binding contract because of his mental incapacity,” and “that he was legally inhibited from entering into a contract after the said Miss Mattie Helton was appointed as his guardian and until such time as the guardianship might be terminated in the manner provided by law,” and that the note and the judgment thereon were void because of W. H. Helton’s mental incapacity to contract at the time of its execution, and because W. H. Helton was under guardianship as an insane person at the time of the execution of the note. E. B. Helton, respondent in the motion to set aside, denied that Miss Mattie Helton had ever been legally appointed the guardian of W. H. Helton. The motion to set aside the judgment was overruled, and the movant excepted.

The record discloses that the note sued on was given for money borrowed by W. H. Helton to pay a fine imposed upon him in the superior court of Barrow county. On the hearing o.f the motion to set aside the judgment the clerk of the superior court testified: “I wrote out this original note, and W. H. Helton signed the same in my presence, for the money to pay said fine and cost in the said case, which his brother A. C. Helton lent to W. H. Helton for that purpose. There was no question made by said W. H. Helton at the time, or by anyone for him, that he had a guardian, or that he had anything wrong with his mind. In so far as I could observe and tell he had ample mental capacity, and knew fully and understood thoroughly what he was doing, and appeared to be mighty glad to have the fine paid so as to prevent his going to the chain-gang for twelve months.” The movant introduced in evidence the entire record of the lunacy proceeding before the ordinary. That record showed that the ten days notice required (by section 3092 of the Civil Code of 1910) to be given to the three nearest adult relatives of the alleged lunatic was not given, but that it had been waived in writing by such relatives. Such a waiver is permissible under the act of 1915 (Ga. L. 1915, p. 20), which amends code section 3092. That act, however, also requires that where such a waiver has been made, there shall be submitted an affidavit by one of such relatives, or by some other person, that the alleged lunatic “is violently insane and is likely to do himself bodily injury;” and the act further provides that “the truth of such affidavit” must be “verified in writing by a practicing physician appointed by the ordinary to examine” the alleged lunatic. In this case it appears on the face of the lunacy proceedings that the required affidavit was not made, and, of course (the affidavit not having been made), the truth of the affidavit was not verified as required by the act. It follows that the ordinary was not authorized in this case to issue a commission of lunacy, and that the appointment of the guardian for the alleged lunatic was void. And, the invalidity of such appointment appearing on the face of the record, the judgment of appointment could be collaterally attacked. Payne v. Shirley, 25 Ga. App. 644 (3) (104 S. E. 17), and cit.

In view of the foregoing rulings tbe court did not err in refusing to set aside the judgment.

Judgment affirmed.

MacIntyre, J., concurs.