McCowen v. Flanders , 155 Ga. 701 ( 1923 )

Hines, J.

(After stating the foregoing facts.) This is a petition in equity, brought by Pearl Flanders, the widow and sole heir at law of the intestate, and a purchaser from her of certain personal property of the intestate, against McCowen, as temporary administrator of Eobert Flanders, and the sheriff, to enjoin an action by, McCowen as temporary administrator, and now proceeding in his name as permanent administrator, against such purchaser, and to set aside and vacate the judgments of the court of ordinary , of Bibb County appointing such temporary and permanent administrator. The grounds on which the plaintiffs seek to vacate said judgments are, that Pearl Flanders, as the wife and sole heir at law of the intestate, has the right to the possession of the estate of the intestate without administration, that there is no necessity for administration, the plaintiffs alleging on information and belief that the deceased left no debts; that under the law the wife of the deceased is first entitled to act as administrator of his estate; that an order granting administration in disregard of Code § 3943 is void, and may be so declared at the suit of anyone lawfully concerned; that the action of the court of ordinary of Bibb County in appointing McCowen as such administrator is void, he not being related to, nor representing any creditor of, said deceased; that at the time of his death the deceased was living with or in the house with one Elizabeth Flanders, by whom he was killed; and that immediately after his death McCowen, representing himself as the lawful representative of Elizabeth Flanders, filed his application for appointment as temporary administrator of the estate of Robert Flanders. McCowen as such administrator filed his demurrer to this petition, which was overruled by the court; and error is. assigned on this ruling.

Do the facts alleged present a case for a court of equity to interfere and set aside and vacate the judgments of the court of ordinary appointing McCowen temporary and permanent administrator of the estate of the deceased ? It is true that upon the death of the husband without lineal descendants the wife was his sole heir, and -upon the payment of his debts, if any, was entitled to take possession of his estate without administration. Civil Code (1910), § 3931, par. 1. It is true also that a person who is neither of kin to nor a creditor of the deceased, nor has any personal interest in the administration of his estate, can not be appointed his administrator. Myers v. Cann, 95 Ga. 383 (22 S. E. 611). It is also true that a woman, who marries a man with a living wife from whom he has never been divorced, can not select the administrator of such man, when he dies, although she married him without any knowledge that he had a living wife. The wife could have eaveated the application of McCowen for permanent letters of administration upon the estate of her husband on the above grounds; and, upon proof thereof, could have defeated his appointment. It is not alleged that she did not have notice of McCowen’s application for permanent letters of administration, and an opportunity to caveat the same. The plaintiffs do not give any reason or excuse for failing to make the above defenses to McCowen’s application for administration upon this estate. They do not allege that it appears from the face of the proceedings that the intestate died without lineal descendants, that his wife was his sole heir at law, that he left no debts, that the applicant was not of kin to, or a creditor of, the deceased, or that he had no interest in the estate; nor is it alleged that McCowen made any false and fraudulent representations to the court of ordinary to obtain his appointment. Then what standing have the plaintiffs in a court of equity.? They are asking a court of equity to vacate the judgments of the court of ordinary. On the showing of the plaintiffs, equity will not interfere. “ Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, umnixed with fraud or negligence on his part.” Civil Code (1910), § 4585; Mobley v. Mobley, 9 Ga. 247. The plaintiffs do not bring themselves within this rule. The court of ordinary of Bibb County had jurisdiction to grant these letters of administration. The wife does not allege that she was entirely ignorant of the defense which she could have made to the application of McCowen to be appointed permanent administrator, or that she was prevented from making it by fraud or accident, or the act of McCowen, unmixed with fraud or negligence on her part. For this reason the petition did not set forth a cause of action so far as it sought to vacate the judgment appointing the permanent administrator; and as it was necessary to get rid of this judgment in order to defeat the bail-trover action, and to assert the right of the wife to the possession of the estate without administration, the petition did not set forth a cause of action as to the other matters alleged therein.

The above ruling does not conflict with other decisions of this court upon which plaintiffs rely. In Fussell v. Dennard, 118 Ga. 270 (45 S. E. 247), Jones v. Smith, 120 Ga. 642 (48 S. E. 134), Medlin v. Downing L. Co., 128 Ga. 115 (57 S. E. 232), and similar eases, this court held that, if want of jurisdiction appears on the face of the record, the judgment is a nullity, and can be so treated by any one whose rights are affected thereby. In Wallace v. Walker, 37 Ga. 265, 92 Am. D. 70, McArthur v. Matthewson, 67 Ga. 134, Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237), Powell v. McKinney, 151 Ga. 803 (108 S. E. 231), and in other eases of like import, it was held that heirs and creditors, who had no knowledge that the application for letters of administration was pending, could maintain a petition to vacate the judgment of the court of ordinary appointing the administrator, when said judgment was obtained by fraud. In the ease at bar there is no allegation that the judgment granting permanent letters of administration was procured by fraud. The nearest approach to such allegation is the statement, “that immediately afteT his [intestate’s] death said McCowen, representiiag himself as the lawful representative of Elizabeth Flanders, filed his application for appointment as temporary administrator of the' estate of Robert Flanders.” In Wash v. Wash, 145 Ga. 405 (89 S. E. 364), the petition was filed in the court, of ordinary to set aside the judgment of that court; and if that case was well decided, it would not apply to a proceeding in equity to vacate such judgment. So we are of the opinion, that the demurrer to the petition should have been sustained.

As the court erred in not sustaining' the demurrer to the petition, the subsequent trial of the case was nugatory, and it becomes unnecessary to consider errors alleged to have been committed by the court in the further progress of the case.

Judgment reversed.

All the Justices concur.