Whitley Grocery Co. v. Jones , 128 Ga. 791 ( 1907 )

Lumpkin, J.

(After stating the facts.) This is not a proceeding in equity, but a proceeding to set aside an order authorizing the sale of real estate by an administrator, in the court of ordinary where such order was granted. The question involved is not, therefore, to be tested by the power of a court of equity, but by the power of a court of ordinary. The demurrers contained several grounds, but it is only necessary to deal with one of them which controls the ease. Each of the defendants demurred to the proceeding, on the ground that neither C. E. Whitley as administrator of the estate of Henry Jones, nor any other administrator of the deceased, was made a.party or served. The order granting the administrator authority to sell was a judgment of a court of general jurisdiction. The present application is an effort to set aside that judgment, without having before the. court as a party the administrator on whose petition and in whose favor it was granted. It is an attempt by motion to set aside a judgment without having before the court the party on whose petition it was rendered. C. E. Whitley individually is not the same as C. E. Whitley as administrator of the ■estate of Henry Jones. It is urged that the administrator has since been granted letters of dismission by the court of ordinary, and therefore can not be made a party to this petition. In that lies the insuperable difficulty to entertaining the proceeding at all. The administrator is a necessary party. If he has been granted letters of dismission, he can not be made a party unless the grant is reopened and he is reinstated in office. It is sought to avoid the necessity for making him a party,'by making parties of those who hold under the sale; but they alone were not interested. If the order is set aside, the sale and disposition of the proceeds might be a devastavit, and the securities on the bond of the administrator would be interested. Under certain circumstances it has been held that an equitable proceeding to set aside an executor’s deed could be maintained without the presence of the executor, who had died. Hodges v. Wheeler, 126 Ga. 848. But this is different from setting aside a judgment without the presence of the party in whose favor it was rendered, or any person representing him. See Broach v. Walker, 2 Ga. 428; Carter v. Anderson, 4 Ga. 516; Groce v. Field, 13 Ga. 24; Whitaker v. Smith, 33 Ga. 237; Bell v. Hanks, 55 Ga. 274; McArthur v. Matthewson, 67 Ga. 134. The demurrer should have been sustained and the petition dismissed.

Judgment reversed.

All the Justices concur.