Weldon v. Patrick ( 1882 )

Speer, Justice.

[Miss Weldon cited Patrick, as her guardian, to a settlement with her. Among otherthings, the defendant pleaded a former recovery, and offered in support of such plea, the following record:

“To the Cottrt of Ordinary of Spalding County:

“The petition of Reída Weldon respectfully showeth that she is twenty-one years old; that Wiley Patrick is her guardian, and asks that the said Wiley Patrick be cited to appear before your Honor tb make an account and settlement with your petitioner.

M. V. McKibben,

Plaintiff’s Attorney."

“Ordinary’s Office, Spalding County, Ga., April 19,1875.

“ To Wiley Patrick, Guardian of E. R. Weldon:

“Your ward, E. R. Weldon, having .applied to this court for a citation requiring you to appear and make an account and settlement, you are hereby cited to be and appear before this court, by ten o’clock in the forenoon of the first Monday in May, 1875, to make an account and settlement with your said ward. Witness my hand and official signature this April 19th, 1875.

F. £>. DlSMUKE, Ordinary."

“Spalding Court of Ordinary, May Term, 1875.

“On hearing the evidence in the. foregoing case of .Reída Weldon vs. Wiley Patrick, her guardian, it is ordered and adjudged by the court, that the-said Wiley Patrick, guardian of said Reída Weldon, has overpaid his said ward seventeen dollars more than was due her. It is therefore ordered that the said Reída Weldon pay the costs of this proceeding; By the court.

F. D. Dismuice, Ordinary.”

It was shown that on the day the judgment was rendered, plaintiff’s attorney and Patrick both appeared and examined the returns of the guardian; after which, plaintiff's attorney stated that he would not have anything further to do with the case. The evidence was conflicting as to whether or not he ordered it dismissed.

The auditor to whom the present case was referred (having been carried to the superior court by appeal), reported that the former case was a bar to it. Exception was taken to this ruling, it being insisted that the former record was insufficient to furnish a basis for judgment or show jurisdiction. The exception was overruled and the report approved. Plaintiff excepted.]