Smith v. Scarborough

Atkinson, Justice.

In Medlin v. Downing Lumber Co., 128 Ga. 115 (57 S. E. 232), it was said: "The court of ordinary is a court of general jurisdiction; and unless the want of jurisdiction appears on the face of the record, its judgments can not be collaterally attacked. . . Want of jurisdiction in the court of ordi*159nary to grant letters of administration is not shown by the allegations of an application therefor reciting the death of the decedent sidy-eight years before the filing of the application by a resident of the State, that the decedent, at the time of his death, resided in the county where administration is sought, leaving an estate, administration on which was necessary for the purpose of distribution among the heirs of the decedent, and that “petitioner is entitled under the law to be appointed administratrix upon said estate, being one of the next of kin of the deceased/” In Martin v. Dix, 134 Ga. 481 (68 S. E. 80), it was said: “Where letters of administration have been granted by the court of ordinary having jurisdiction upon the estate of a decedent, as in case of intestacy, and subsequently a will of the decedent is propounded and admitted to probate, this does not ipso facto render void a sale of land of the decedent by the administrator before the propounding of the will for probate and under an order of the ordinary, duly granted, authorizing such sale. Patton's Appeal, 31 Pa. St. 465; Kittredge v. Folsom, 8 N. H. 98; Woerner's American Law of administration (2d ed.), §§ 266, 268. . . Such an order of sale could not be collaterally attacked in an action of ejectment brought by the legatees under the will, after its probate, by showing that the administrator knew of the existence of the will when he applied for appointment, and fraudulently- concealed it, and obtained the appointment on the ground that there was an intestacy, and that the purchaser at the sale also had notice of the existence of the will. Fraud in the procurement of the order for sale as administrator, and notice on the part of the purchaser, may be available in proper proceedings to set aside such order and sale, but they can not avail to destroy the judgment of the ordinary and the sale thereunder, upon a mere collateral attack in an ejectment suit by persons claiming as legatees.” Citing Davie v. McDaniel, 47 Ga. 195, Bailey v. Ross, 68 Ga. 735, and Medlin v. Downing Lumber Co., supra. In Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009), it was held: “A judgment of a court of ordinary, granting letters of administration upon an estate, being a judgment of a court of general jurisdiction, can not be collaterally attacked unless the record negatives the existence of necessary jurisdictional facts.” It was said, in the opinion: ““A court of ordinary in the matter of administering estates is a court of general jurisdiction. Tant v. Wigfall, 65 Ga. *160412; Barclay v. Kimsey, 72 Ga. 725; Jones v. Smith, 120 Ga. 642 (48 S. E. 134). It is to be presumed in favor of one of its judgments that every fact necessary to, make it valid and binding was before the court. Jones v. Smith, supra; Stuckey v. Watkins, 112 Ga. 268 (37 S. E. 401, 81 Am. St. R. 47). Thus, if the record is incomplete, or is'merely silent concerning jurisdictional facts, the judgment, by reason of the presumption, will sustain itself against collateral attack by parties or privies on account of an alleged want of jurisdiction.” See also Copelan v. Kimbrough, 149 Ga. 683, 686 (102 S. E. 162), and cit. These authorities are applicable to the case under consideration, and to the ruling announced in the first headnote. There is no allegation of failure to comply with any statutory requirement essential to the court’s taking jurisdiction to grant administration or orders of sale, as dealt with in Horne v. Rodgers, 113 Ga. 224 (38 S. E. 768); Powell v. Harrison, 180 Ga. 197 (178 S. E. 745), and several cases therein cited, and other similar cases relating to the machinery of the court.

The rulings announced in the second and third headnotes do not require elaboration.

Judgment reversed.

All the Justices concur, except Russell, C. J., and Bell, J., who dissent. On rehearing the former judgment is adhered to. Russell, C. J., and Bell, J., dissent.