Opinion
41792.
ARGUED FEBRUARY 9, 1966.
DECIDED MARCH 3, 1966.
Order declaring no administration of estate necessary. Crisp Superior Court. Before Judge Horne.
Joseph Andrews, John R. Rogers, for appellant.
D. E. Turk, J. C. McDonald, for appellee.
1. The court of ordinary has jurisdiction of the subject matter of a proceeding to obtain an order declaring that no administration is necessary.
2. (a) A petition or application for an order declaring no administration to be necessary is not fatally defective and the proceeding is not void on its face because of failure to allege that the heirs at law have agreed upon a distribution of the estate amicably among themselves. While the statute contemplates the allegation, it is an amendable defect.
(b) Nor does failure to include in the order declaring no administration to be necessary a recital that the heirs have agreed upon a division of the estate render the proceeding void on its face. The statute does not require it.
3. One who obtains a judgment from a court of competent jurisdiction will not be heard to question its validity.
4. A motion at a subsequent term to set aside a judgment in the court of ordinary, not grounded upon fraud, accident or mistake, is limited to matters appearing of record. Evidence of matters aliunde the record is irrelevant in a consideration of a general demurrer to the motion or in considering the motion on its merits and is properly rejected.
ARGUED FEBRUARY 9, 1966 — DECIDED MARCH 3, 1966.
Mrs. Edna C. Saturday died intestate May 22, 1963, owning certain described real and personal property. On June 29, 1963, G. B. Saturday and H. J. Saturday filed in the Crisp Court of Ordinary a petition for an order declaring that no administration on her estate was necessary, alleging that they were the husband and son, respectively, of the deceased, both being sui juris, that G. B. Saturday lived at 1110 11th Street, North, Cordele, Georgia, and H. J. Saturday lived at Rochelle, Georgia, that the estate of the deceased owed no debts and that there was no necessity for an administration thereon. The petition was sworn to by each petitioner. After citation in terms of law, returnable to the August, 1963 term and published during July, an order was entered by the ordinary August 5, 1963, in which findings were recited that (a) citation had been duly published, (b) Mrs. Saturday had died intestate while a resident of Crisp County owning the real and personal property described in the petition, (c) petitioners were the only heirs at law of the deceased, were of age and laboring under no disabilities, (d) the estate of the deceased owed no debts, and (e) no objection had been made by any creditor or other interested person to the granting of the order, and the order followed that "no administration upon the estate of the said Mrs. Edna C. Saturday, deceased, is necessary."
On June 6, 1964, G. B. Saturday filed with the court of ordinary a petition or motion to set aside the judgment of August 5, 1963, declaring no administration to be necessary. He alleged that prior to the filing of the petition for the order he and H. J. Saturday had, in good faith, come to an oral agreement as to the division of the estate between themselves, but that after the order was entered the agreement was abridged, though a partial division had been accomplished, and further alleged as a ground for setting the order aside that neither the petition nor the order showed that the heirs had agreed upon a division of the estate amicably among themselves, and that the keystone of the entire proceeding is the amicable agreement for division and a determination that the heirs are legally capable of entering into it.
A rule nisi was issued upon the motion to set aside, duly served on H. J. Saturday, who filed his general demurrer and written objections, including a plea of estoppel. After hearing, the ordinary entered an order October 20, 1964, reciting that it had been made to appear that H. J. Saturday was neither a natural nor an adopted child of the deceased, hence was not an heir at law entitled to invoke the provisions of Code § 113-1232 et seq., and that the petition for an order of no administration necessary had failed to disclose that the alleged heirs had agreed upon a division of the estate amicably among themselves; whereupon, the order of August 5, 1963, declaring no administration to be necessary was vacated and set aside.
Within the time provided by law H. J. Saturday appealed the matter from the court of ordinary to the superior court. G. B. Saturday moved to dismiss the appeal on the ground that the court of ordinary had been without jurisdiction of the subject matter of the proceeding.
The motion to dismiss the appeal was denied and, upon consideration, the court sustained H. J. Saturday's general demurrer to the motion to set aside. From these adverse rulings G. B. Saturday appeals.
1. The motion to dismiss the appeal was properly denied. That the court of ordinary had jurisdiction of the subject matter is beyond peradventure. The statute, Code Ann. § 113-1232 et seq. (Ga. L. 1958, p. 355 et seq.), specifically provides for the filing of the proceeding in that court.
2. The general demurrer to the motion to set aside was properly sustained.
(a) The contention that the order of no administration necessary was void on its face because of the failure of the petition to allege that "the heirs at law have agreed upon a division of the estate amicably among themselves," is without merit. While the statute does provide that the petition should so allege, failure to do it is an amendable defect, cured by the judgment, and is not ground for setting the judgment aside. Code § 110-705. Laramore v. Dudley, 145 Ga. 102 ( 88 S.E. 682). Along with the matter of an agreement for amicable distribution among the heirs, the statute requires that the petition allege other matters, e.g., the names, ages, residence of the heirs. Would it be contended that an omission of the residence of an heir, or the giving of an improper address renders the proceeding void? Or suppose the age of an heir were unknown, or incorrectly stated. The answer is obvious. These, like the existence of an agreement for division, are matters which may be cured by amendment.
(b) Nor does the omission of any reference to an agreement for division in the order itself have the contended effect. An examination of the statute should clear this. The ordinary is charged with the duty of (a) ascertaining who the heirs are and whether they be of age or suffering from any disability and (b) whether the estate owes any debts. If he finds that all heirs are sui juris and no debts are owing, "it shall then be the duty of the court of ordinary to enter an order in said proceedings finding that no administration or no permanent administration, as the case may be, of said estate is necessary." Code Ann. § 113-1235. He is not required to make any finding as to the agreement for division or to incorporate any reference to it in his order.
There is a presumption that every man obeys the mandates of the law and performs all of his official and social duties until and unless the contrary appears. Clements v. Hollingsworth, 205 Ga. 153 (5) ( 52 S.E.2d 465). The bringing of a petition under this statute by those who allege themselves to be all of the heirs at law of a deceased gives rise to a presumption that they have reached an agreement for an amicable division of the estate among themselves, whether it be alleged in the petition or not.
No fraud, accident or mistake is alleged as a basis for setting aside the judgment. Code § 37-219. Mr. Saturday simply says that he omitted to include an allegation in his own petition as to the existence of the agreement, and now contends that this was a necessary allegation to afford life to the petition. We cannot agree. It would have been a proper allegation. The law provides that it should have been included, but if the matter had been called to his own attention before the judgment was entered we have no doubt that he would have, as he could have, amended to meet the deficiency. That might well have been done if the proceeding had been resisted by anybody, but it was not.
3. Additionally, appellant is now estopped to assert the absence of the agreement. He was one of the petitioners who invoked the entering of the judgment, and "one who obtains a judgment from a court of competent jurisdiction will not be heard to question its validity." Robbins v. Riales, 221 Ga. 225, 227 ( 144 S.E.2d 80). To the same effect, Bennett v. Bennett, 210 Ga. 721 (2) ( 82 S.E.2d 653); Wallis v. Watson, 184 Ga. 38 ( 190 S.E. 360); Don v. Don, 162 Ga. 240, 242 ( 133 S.E. 242).
If he were not otherwise estopped on the matter of the existence of the agreement the very allegations of the motion to set the judgment aside would suffice. He alleges that prior to the bringing of the proceeding he and H. J. Saturday had entered into a good faith agreement for an amicable division and that there was a part performance of it after the judgment.
4. At the hearing in the superior court appellant sought to introduce evidence to show that H. J. Saturday was not the child of the deceased, either natural or adopted, hence was not an heir, for the purpose of contending that there was and could have been no lawful agreement among the "heirs at law" for a division of the estate. The evidence was properly rejected, for it could not have been considered in ruling on the demurrer. Again, appellant was estopped to deny the allegations of his own sworn petition which had not been withdrawn at any time prior to the judgment. These stood as admissions in judicio which he could not controvert with evidence. Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 141 ( 33 S.E. 945); Carter v. Carter, 80 Ga. App. 172 (1) ( 55 S.E.2d 721). In his petition appellant alleged that he and H. J. Saturday were, "the husband and son, respectively, of the said Mrs. Edna C. Saturday, and are the sole heirs at law of the said Mrs. Edna C. Saturday."
Nor would the proffered evidence have been relevant in connection with the motion to set aside the judgment, for it went to a matter which did not appear upon the face of the record. Further, a hearing of evidence is not available in determining the merits of such a motion made at a subsequent term. Cf. Parham v. State, 112 Ga. App. 636, 638 ( 145 S.E.2d 726). There may be a different rule when the motion is made during the term at which the judgment was entered (see Union Compress Co. v. Leffler Son, 122 Ga. 640 (1) ( 50 S.E. 483); Southern Cotton Oil Co. v. Taylor, 18 Ga. App. 56 ( 88 S.E. 798)), or when brought in equity under Code § 37-219 ( Branan v. Feldman, 158 Ga. 377, 384 ( 123 S.E. 710); Ward v. Montgomery Ward Co., 181 Ga. 228, 229 ( 181 S.E. 664)), but the judgment under attack was entered at the August term, 1963, while the motion to set aside was filed in the same court in June, 1964. The court of ordinary has regular monthly terms, convening on the first Monday of each month. Code § 24-2101. Thus the motion was restricted by Code § 110-702 to matters appearing upon the face of the record. American Mutual Liability Ins. Co. v. Satterfield, 88 Ga. App. 395 (2) ( 76 S.E.2d 730); Safe-way Finance Co. v. Standard Bag Co., 105 Ga. App. 712 (5) ( 125 S.E.2d 733); Pippin v. State, 172 Ga. 224 ( 157 S.E. 185).
Judgment affirmed. Bell, P. J., and Jordan, J., concur.