dissenting.
In this case my brethren and myself are agreed that under section 2486 of the Code, the notice to Howard, the heir, by Davis, the administrator, should have been personal notice to conclude him; but we differ on the point in what forum the judgment of the ordinary should be attacked. A majority of the court think that it may be done in the superior court on the trial of the ejectment; I think it can be done only in the court which rendered the judgment, and that is the court of ordinary. The bill was filed to suspend the trial of the ejectment until the motion to set aside, which was pending on appeal from the ordinary, could be heard, the ejectment standing first for trial on the docket. The necessity for the bill and the injunction depends, of course, on the issue whether the superior court, on the trial of the ejectment, can attack the judgment of the court of ordinary for irregularity in the no*436tice given to Howard, the heir, that notice not having been personally given, but only given by advertisement in the newspaper. My brethren think it can do so. I think not.
The order granting leave to sell is a judgment: 7 Georgia, 559; 47 Ibid., 202. The court of ordinary is a court of original, exclusive and general jurisdiction of the sale and disposition of the real property belonging to, and the disposition of, deceased persons’ estates, and of all other matters and things relating to estates of deceased persons: Code, section 331; acts of 1855-6, page 147; 14 Georgia, 27; 24 Ibid., 245. If a court of general jurisdiction in respect to the disposition and sale of real property, it had jurisdiction of this land to order its sale, and of the administrator and the heir to pass upon the necessity of the sale as between them; and its judgment on that subject, for any irregularity of notice or otherwise, cannot be collaterally attacked, but must be attacked in that court which rendered it, Code, section 3593; 13 Georgia Reports, 1; 14 Ibid., 325; 30 Ibid., 961. In Tucker vs. Harris, 13 Georgia Reports, 1, it is ruled distinctly that the court of ordinary is such a court, and its judgment is so to be regarded, and the present chief justice expressed his hearty concurrence in the decision, though having been of counsel he did not preside. If this judgment were void for want of jurisdiction of the person and subject matter, or for any other cause, then it might be attacked collaterally on the ejectment trial: Code, sections 3594, 3828. But is it void? My brethren concede that it is not. It is good, they say, to order the sale of this land, and they cite section 2559 of the Code to show its validity for that purpose. If valid for any purpose it is not void; and, therefore, it must be attacked in the court of ordinary which rendered it. Notice was given by publication, not personally. It is defective in the mode of the notice, in its irregularity, not void for want of jurisdiction; for the court had jurisdiction of the subject matter, the sale of the land, and of the persons, the administrator and the heir. My own opinion is that section 2559 of the Code is controlled by section 2564, and restricted as to all persons in possession holding ad*437versely to the estate, except the heir, who can hardly be said to hold adversely. I mean that no order can be passed by the ordinary to sell lands in possession of anybody except the heir, unless the lands be in the possession of the administrator; section 2564 prohibits it. It would be a vain, foolish thing to authorize the administrator, under section 2559, to sell what section 2564 forbade to be sold; and therefore the ordinary can order the sale of lands only in the possession of the administrator or of the heir. I construe the three sections together — 2486, 2559 and 2564 — and, taken together, they mean that the ordinary can order the sale of lands in the possession of the heir as well as of the administrator himself, but not in that of strangers holding adversely. Section 2559 requires only notice by publication; and such notice makes the judgment valid for the sale only, if the land be in the possession of the administrator. Section 2486 requires personal notice. It is not necessary in either case that the judgment should set out the notice or the kind of notice. The presumption is that the court did its duty and gave the right sort of notice if it granted the order or made the judgment. A court of limited jurisdiction may be constrained to show on the face of the judgment it renders its authority therefor; but it will be presumed that a court of general jurisdiction of the subject matter and persons did all things precedent to the judgment right, unless the contrary appear on its face. If it “carries its death wound there on its face,” it is dead every where, and may be pronounced but a lifeless corpse by any court that looks at it. But if it seems to be alive, and only in view of some irregularity, as in the matter of the kind of notice, not seen on its person, but to be shown aliunde, it be sick unto death, then it must be killed, if it deserve death, by the court that gave it birth. Such, I think, is the plain meaning of the Code in the sections which make the courts of ordinary courts of general jurisdiction, and in those which regulate the mode and forum of attacking judgments: Code, sections 331, 3593, 3594, 3828. And such, it appears to me, have been the uniform decisions of this court. For authority that the order *438need not show on its face the facts necessary to give the court jurisdiction, see Barnes vs. Underwood, 54 Georgia Reports, 87. In that case the chief justice delivered the opinion, and said: “If this was an open question in this court, I should hold that the appointment of Underwood, as shown by the record from Hall, was made without authority of law, for the reasons stated in my dissenting opinion in Davie vs. McDaniel, 47 Georgia Reports, 195, and for the additional reasons urged on the argument by the counsel for the plaintiff in error in this case. But the majority of this court held in Davie vs. McDaniel that the judgments of the court of ordinary in this state, in matters connected with wills and the administration of estates, were judgments of courts of general jurisdiction, and that the necessary jurisdictional facts need not appear on the face of their proceedings. Such is, therefore, now the settled law in this state on that question until the general assembly shall declare what is the true intent and meaning of the 4114th and 4115th sections of the Code.” By turning to the opinion in Davie vs. McDaniel, 47 Georgia Reports, 195, it will be seen that Mr. Justice Montgomery carefully examined the decisions of this court from the beginning, and cited cases from the first volume of Georgia Reports down, to the effect that courts of ordinary, whatever they may have been, are courts of general jurisdiction, and their judgments entitled to full authority as such. I confess that the 4115th section of the Code does seem to provide that the order should recite the names of persons notified personally under the preceding section; but'store decisis is a good rule, to which the chief justice, in Barnes vs. Underwood, yielded, and I bow to that decision now. Further, section 4114 of the Code provides that the sheriff shall serve the party to be notified personally with the order of the ordinary. The presumption is that the sheriff did this and made his return, because the presumption is that the court would not grant the order to sell until the law had been complied with. At common law, such return of the sheriff was conclusive, but by our Code it may be traversed and set *439aside: Code, section 3340. But how and where traversed, and set aside? Under the recent rulings of this court, it must be done not only in the court where rendered, but it must be done by traverse of the return, to'which traverse the sheriff must be a party: See Maund vs. Keating, 55 Georgia Reports, 396, and Lamb vs. Dozier, Ibid., 677.
In my judgment, the concurring opinion of Judge McCay, in Davie vs. McDaniel, on page 208 of 47 Georgia Reports, embodies the whole law in few words, “multum in parvo.” Those words are these: “The rules prescribed by the statute regulating the mode of doing business by the courts of ordinary ought always to be conformed to; and if they be not conformed to, the judgments are irregular, but they are not for that reason void. An irregular judgment cannot be attacked for that reason before another tribunal; to justify such an attack, the judgment must be void.” To attack this judgment in the case at bar, I think, for the foregoing reasons, it was necessary to move in the court of ordinary, as the defendant in error did, and as the ejectment would be tried before his motion on appeal could be heard to set aside the judgment, I think the bill and injunction necessary, and that the judgment sustaining the bill and granting the injunction should have been affirmed: See Stell vs. Glass, 1 Kelly, 486; Clements vs. Henderson, 4 Georgia Reports, 148; McDade vs. Burch, 7 Ibid., 559; Tucker vs. Harris, 13 Ibid., 1, (page 16 particularly;) also, 14 Ibid., 27; 24 Ibid., 245; 15 Ibid., 346; 3 Kelly, 110; 30 Georgia Reports, 961; 50 Ibid., 231; 14 Ibid., 325, and dissenting opinion of McCay, judge, in Fischesser vs. Thompson, 45 Ibid., 459.