The assignments of error on the rulings on special demurrer are not argued, but from what has hereinabove been said it is obvious that the paragraphs objected to as conclusions are sufficient, when considered with the remaining allegations of fact in the petition, to withstand this criticism. Saliba v. Saliba, 202 Ga. 279 (9) ( 42 S.E.2d 748). Also since, as above pointed out, the duty of a hospital toward its patients in view of its knowledge of their physical condition is relevant and material in considering the care owing by the defendant under the circumstances, paragraph 24 of the petition, setting out such duty in general terms, was not subject to criticism on the ground that it was a conclusion or that it did not state correctly a legal duty on the part of the defendant. The trial court erred in sustaining the general and special demurrers to the petition.
Payne v. Payne, 213 Ga. 613, 614 ( 100 SE2d 450) (1957). Although Caveators urge that Saliba v. Saliba, 202 Ga. 279, 281 ( 42 SE2d 748) (1947), requires that the will be considered to cease to exist at the time of the then-statutorily revoking event, it does not. Saliba did not involve any statutory change between the time of the will's execution and the time of the testator's death, and Saliba does nothing to alter the application in this case of the rule that the law in effect at the time of the testator's death governs. Judgment affirmed. All the Justices concur.
" "`A guardian ad litem or next friend has no authority to compromise or settle a suit except by leave of the court.'" Saliba v. Saliba, 202 Ga. 279, 283 ( 42 S.E.2d 748) (1947). For the same reasons a minor's next friend has no authority to forfeit the minor's claim by lack of prosecution except by leave of court. Because the minor was not represented at the call of the case, it was incumbent upon the trial court in the original action to appoint a guardian ad litem or "make such other order as it [deemed] proper for the protection of the infant . . ."
Bullard v. Wynn, 134 Ga. 636 (2) ( 68 S.E. 439). See also Grier v. Jones, 54 Ga. 154 (2); Saliba v. Saliba, 202 Ga. 279 (7) ( 42 S.E.2d 748); Burgess v. Burgess, 210 Ga. 380 ( 80 S.E.2d 280) (one Justice not participating). That there is now no administration upon the estate of Alma Miller Warr, and particularly that an order of no administration thereon has been obtained does not call for an exception to this rule.
3. The defendant filed a special demurrer to paragraph 9 of the petition on the ground that it is a conclusion unsupported by any allegation of fact which would constitute a ground for divorce. Paragraph 9 reads as follows: "Plaintiff further shows that because of continued acts above set forth, your petitioner could no longer live with her and had he made an effort to do so, his health would have become permanently injured." A conclusion may be plead if it is supported by sufficient allegations of fact. McWhorter v. Settle, 202 Ga. 334 (4) ( 43 S.E.2d 247); Saliba v. Saliba, 202 Ga. 279 (9) ( 42 S.E.2d 748). In this case plaintiffs' conclusion is amply supported by the allegations of cruel treatment set out in Division 2 of this opinion, and it was error for the trial court to sustain this special demurrer.
Blaisdell v. Bohr, 68 Ga. 56(3); Henderson v. Napier, supra; Bond v. Hunt, 135 Ga. 733 ( 70 S.E. 572); First National Bank of Sparta v. Wiley, 150 Ga. 759 (2) ( 105 S.E. 308)." Saliba v. Saliba, 202 Ga. 279, 286 ( 42 S.E.2d 748). In the Henderson case, cited above, this court stated: "Where equitable proceedings are instituted which pray for relief touching rights and interests of the petitioners in certain specific property, and the petition discloses the fact that others are directly interested in the property, who are not made parties to the proceedings, and whose interests would be affected by a grant of the relief sought, such other persons are proper and necessary parties to the action."
Code ยง 3-807; Warnock v. Warnock, 206 Ga. 548 ( 57 S.E.2d 571). 3. All parties to a judgment should be made parties to a proceeding to vacate, open, or set it aside, including those who may have acquired interests in the judgment, or under it, and therefore have an interest in maintaining it. Saliba v. Saliba, 202 Ga. 279 (6), 286 ( 42 S.E.2d 748); Blaisdell v. Bohr, 68 Ga. 56 (3); Henderson v. Napier, 107 Ga. 342, 344 ( 33 S.E. 433); Bond v. Hunt, 135 Ga. 733 ( 70 S.E. 572); Flinn v. Flynn, 210 Ga. 280 ( 79 S.E.2d 534). 4. While third persons to whom minor children have been awarded in a proceeding by the parents for divorce are not to be considered parties to the divorce proceeding ( Girtman v. Girtman, 191 Ga. 173 (2), 178, 11 S.E.2d 782, 786), and have no natural or property rights respecting the custody of the children as against either of the children's parents ( Sloan v. Jones, 130 Ga. 836, 855, 65 S.E. 21), such a decree, although not conclusive under a change of circumstances ( Sells v. Sells, 172 Ga. 911, 159 S.E. 237; Shields v. Bodenhamer, 180 Ga. 122, 178 S.E. 294), is a permanent award of the custody of the children ( Goodloe v. Goodloe, 211 Ga. 894, 897, 89 S.E.2d 654, and citations; Young v. Pearce, 212 Ga. 722, 95 S.E.2d 671), of such finality as to vest the legal right of custody
There can be no serious challenge of the assertion that, in order to set aside the judgment here assailed upon the ground that it was procured by fraud, all the parties to that judgment, which includes the discharged executrix, are necessary parties. Sewell v. Anderson, 197 Ga. 623 ( 30 S.E.2d 102); Saliba v. Saliba, 202 Ga. 279 ( 42 S.E.2d 748). It is equally well settled that, in order for the courts of this State to bind nonresidents by their judgments in personam, there must be personal service or waiver of personal service upon such nonresidents. Hood v. Hood, 130 Ga. 610 ( 61 S.E. 471, 19 L.R.A. (NS) 193, 14 Ann. Cas. 359); Hamil v. Flowers, 133 Ga. 216 ( 65 S.E. 961); Edwards Mfg. Co. v. Hood, 167 Ga. 144 (3) ( 145 S.E. 87). It is too late now for anyone to mistake the rule for proceedings in rem, wherein constructive service is held sufficient ( Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373, 29 A.L.R. 1363; Faughnan v. Bashlor, 163 Ga. 525, 136 S.E. 545; Jackson v. Jackson, 164 Ga. 115, 137 S.E. 827), as applying to proceedings in personam.
When the contract was approved by the court and incorporated in and made a part of the final decree, the plaintiff was a ward of the court, and it does not appear from any fact alleged in the petition that the provision thus made for the plaintiff's support was not in keeping with or disproportionate in any way to the father's ability to provide for the care and support of the plaintiff. See, in this connection, Saliba v. Saliba, 202 Ga. 279 (3) ( 42 S.E.2d 748); Dooley v. Scoggins, 208 Ga. 200 ( 66 S.E.2d 62). 3. Since the petition failed to state a cause of action for any of the relief sought, it is not necessary for us to rule on the other assignment of error which complains of an antecedent ruling respecting practice and procedure.
Additional cases upon which GMCC rely are factually inapposite. Jones v. Quigley, 169 Ga. App. 862, 863(1) ( 315 S.E.2d 59) (1984), held that a real estate sales contract did not lack mutuality; Saliba v. Saliba, 202 Ga. 279, 282(1) ( 42 S.E.2d 748) (1947), held that a guardian ad litem could not consent to probating a will which was revoked by the subsequent birth of a child. See, e.g., Bacon v. Smith, 222 Ga. App. 542, 544(3) ( 474 S.E.2d 728) (1996) ("The protections of the ward's assets afforded by OCGA ยง 29-2-15 are certainly present upon the probate court's review and approval of the proposed settlement").