Smith v. Andrews , 70 Ga. 708 ( 1883 )

Crawford, Justice.

Section 339 of the Code is in the following language: “ No ordinary shall engage, directly or indirectly, in the practice of law in his own, or in the name of another, as a partner, open or silent, or otherwise, in any cause or proceeding in his own court, or in another court of which his own court has, or has had or may have jurisdiction.”

The questions made by the record in this case arise out of the construction of the foregoing statute.

The ordinary of Crawford county being a practicing attorney at law, as such attorney' brought suit upon an administrator’s bond in the superior court for such county. At the trial term of the case, defendants, by their counsel, moved to dismiss the same upon the ground that it appeared and was admitted that R. D. Smith, Esq., who sued said case and signed said declaration as the sole attorney for the plaintiff, was, at the time of signing and the bringing of said suit, the plaintiff therein and the ordinary for the county of Crawford; and that the court of ordinary for said county had jurisdiction of the administration upon which said suit was brought. Pending the argument of this motion, plaintiff’s counsel moved to amend by placing the signature of B. M. Davis, Esq., nunc pro tunc, as plaintiff’s attorney to said declaration, which, upon objection by defendant’s counsel, was refused and disallowed, to which ruling plaintiff then and there excepted.

The court then sustained the motion' of defendants’ counsel and dismissed the plaintiff’s suit, to which ruling the plaintiff again excepted.

The first question to be settled in this case is, whether the suit grew out of a cause or proceeding over which the court of ordinary has or has had or may have jurisdiction. If it did, then it is clear that it is such a suit as the ordinary, being an attorney, could not as such attorney bring. All estates administered upon must be by proceedings in the court of ordinary. There must have been, therefore, a petition in writing made to the ordinary for the appointment of this administrator; the very bond upon which suit in this case was brought must have been fixed in amount by him; the securities thereto must 'have been approved by him. The returns made by the administrator annually must have been made to and approved by him; the liability of the administrator under those returns so approved", is prima facie evidence against him; the whole proceeding, from his appointment to the final settlement of the administration, is one over which the ordinary has jurisdiction, even to the extent of trying the question of the amount due upon his accounts, if the wards, when of age, see fit to cite him to appear before the ordinary for such settlement.

"Whilst it is true that the bond itself must be sued in the superior court, it is but the ultimate security for the liability appearing upon the books of the returns passed upon by the ordinary. It could, therefore, be scarcely claimed that he should sit in judgment in his own court on matters that create a prima facie liability against the administrator, and then sue the bond and make testimony from his own records to establish the amount due thereon.

Hence, it seems to us .clear that this suit was illegally brought, and one which the ordinary, as an attorney, could not bring, qven though brought in another court.

But it is said that the judge erred in refusing to allow counsel to amend by placing the name of B. M. Davis, Esq., nunc pro tunc, as plaintiff’s attorney, to said declaration. To this we say that there was no legal suit in court, none that the law could recognize, and therefore none that could be amended.

The suit, as brought, was one that the very plaintiff in the case was forbidden by law to bring. And shall it be claimed that when such a suit, so brought, is assailed upon the ground that the law forbade its being in the court at all in that way, that it may escape the prohibition upon it by a nunc pro tuno order? Whatsoever the law forbids to be done is widely different from that which is permissive or discretionary.

The suit was brought contrary to a positive law, and therefore void; no amendment can be made to a void suit. We are referred to the decision in the case of Tatum et al. vs. Allison, Anderson & Co., 31 Ga., 337, where it was held that a writ might be signed by an attorney in fact of the plaintiffs, and that if the signing be imperfect, it is curable, even under the act of 1818. We apprehend that if there had been a positive law forbidding a writ to be signed by an attorney in fact, as it is in this case that an attorney at law shall not bring such a suit, that the court in that case would have ruled as we do in this.

Judgment affirmed.