Thurman v. Roberts , 200 Ga. 43 ( 1945 )

1. Generally, in order for a superior court to acquire jurisdiction, in a civil action, of a minor who is a resident of the State but of a county other than that in which the suit is brought, he must be timely served personally by a second original; and, when the return of service is made to the proper court, and an order is taken appointing for the minor a guardian ad litem, and such guardian ad litem agrees to serve, all of which shall be shown in the proceedings of the court, the minor shall be considered a party to said proceedings. Code, §§ 81-212, 81-215.

2. Service of a second original and process made after the appearance term of court is a nullity, in the absence of an order to perfect service.

3. Where, upon a petition of a receiver to amend orders of sale theretofore granted, the trial court acted only on evidence consisting of a purported return of service of a second original, which had only recently been located after being lost or misplaced for several years, and which recited that the named minor had been served personally with a second original of the petition and process by the sheriff of the county of the residence of the minor on May 3, 1937, requiring her to appear and answer, in the superior court of the county where the suit was pending, on the first Monday in May, 1937, which was May 3, 1937, it was erroneous for the court, in an order passed on May 25, 1945 to include the following: "It further appears to the court from the return of service in this case that a copy of the original petition in this case was duly served upon the said Mary Jean Thurman [the minor in question], and that return thereof was duly made on a second original in the manner and form provided by law, and lawful service is hereby decreed to have been made upon the said Mary Jean Thurman."

4. The holder of a life estate under the terms of her father's will filed an equitable petition in the Superior Court of Fulton County against named contingent remaindermen, including the petitioner's minor daughter, seeking the appointment of a commissioner to sell such life estate in devised land to another life tenant; and to this petition the remaindermen, including the minor acting by and through an alleged guardian ad litem, filed an answer in the nature of a cross-petition, which alleged waste, sought affirmative relief, prayed that the person to whom the petitioner desired to sell be made a defendant, and that as to him "said case be made returnable to the next term of Fulton Superior Court," and further prayed that the interests of the said life tenants be declared and decreed forfeited, and that the respondents have judgment against them for injury by wilful destruction of improvements on the devised property, and that a receiver be appointed, which relief was granted by a decree thereon substantially as prayed in the cross-petition. Where, upon a petition, subsequently brought by the minor remainderman after she had become of age, alleging that she had never been served in the case and praying, among other things, for the cancellation of the judgment and final decree, such issue was heard by the judge, by agreement of counsel, without a jury, on the general demurrer and on the main issue formed by the pleadings, and the prayer of the remainderman to set aside the decree so far as it related to her was denied and her petition was dismissed, the said decree, being unexpected to within the time and manner provided by law, became the law of the case.

5. An order making parties of the heirs at law of a deceased remainderman was appropriate and authorized under the reservation of a decree providing: "The court expressly retains jurisdiction of this matter for the purpose of passing orders of sale of the property involved, orders providing for the safekeeping of the proceeds of sale pending the determination of all matters not now adjudicated, and any and all other necessary or appropriate orders."

No. 15269. NOVEMBER 16, 1945. On April 13, 1937, Mrs. L. G. Thurman, the holder of a life estate under the terms of her father's will, filed in Fulton Superior Court, against John Roberts and other contingent remaindermen including the petitioner's minor daughter, Mary Jean Thurman, an equitable petition seeking the appointment of a commissioner to sell to W. S. Askew her life estate in devised land, and other relief. By consent of counsel for the petitioner an order was passed on May 7, 1937, extending the time for filing pleadings to June 1, 1937. On June 29, 1937, John Roberts and other respondents including Mary Jean Thurman, who was represented by a guardian ad litem appointed by the court, filed an answer in the nature of a cross-petition, which alleged waste, sought affirmative relief, prayed that W. S. Askew be made a party defendant, and that as to him "said case be made returnable to the next term of Fulton superior court," and further prayed that the interests of the life tenants, W. S. Askew and Mrs. L. G. Thurman, be decreed to be forfeited, and that the respondents have judgment against them for injury caused by wilful destruction of improvements on said property. An order on the cross-petition, dated June 29, 1937, required that W. S. Askew be served with a copy of the answer and cross-petition, and as to him made it returnable to the September term, 1937, of Fulton superior court. On December 20, 1938, a final decree was entered, which granted substantially all of the relief prayed in the cross-petition, including a judgment in favor of the remaindermen against Mrs. L. G. Thurman in the sum of $4000 as damages for waste and making the portion of her life estate subject thereto. This decree also held W. S. Askew liable to certain taxes and other claims and made his portion of the property subject. A permanent receiver for the property was appointed in the same decree. In section 9 of the decree it was provided: "The court expressly retains jurisdiction of this matter for the purpose of passing orders of sale of the property involved; orders providing for the safekeeping of the proceeds of sale pending the determination of all matters not now adjudicated; and any and all other necessary and appropriate orders."

On April 17, 1944, Mary Jean Thurman, who had become of age, filed a petition, against the plaintiff and other defendants in the equitable suit brought by her mother, alleging that she had never been served in that case, and praying, among other things, a cancellation of the judgment and final decree of December 20, 1938. That issue was heard by the judge, by agreement of counsel, without a jury, on the general demurrer and on the main issue formed by the pleadings; and on June 30, 1944, the prayer of Mary Jean Thurman to set aside the decree so far as it related to her was denied and her petition was dismissed.

On November 25, 1944, an order was passed approving a sale of the property to a named person for $6000. On December 19, 1944, an order was entered providing for the distribution of the proceeds of sale.

So far as disclosed by the record, there were no exceptions to any of the above rulings.

On May 25, 1945, the court on petition of the receiver passed an order amending the orders of sale theretofore entered, by adding the following: "Mary Jean Thurman is now of lawful age and was of lawful age when the order of sale was confirmed by the court. It further appears to the court from the return of service in this case that a copy of the original petition in this case was duly served upon the said Mary Jean Thurman, and that return thereof was duly made on a second original in manner and form provided by law, and lawful service is hereby decreed to have been made upon the said Mary Jean Thurman." The order further stated, among other things, that Mrs. Thena Roberts, one of the contingent remaindermen, had died since the order of sale was passed, leaving surviving her named persons all of lawful age, which persons were made parties in lieu of the deceased party.

Mary Jean Thurman excepted to the above judgment and assigned error in a direct bill of exceptions on the grounds: The judgment was contrary to law; the court had no evidence before it upon which to base such an order; the evidence shows that, even if service had been made on the plaintiff in error, it was made after the May term, 1937, had begun and was therefore made too late; an order declaring service to have been perfected can not be entered seven years after the signing of a final decree; and new parties can not be made after a final decree. 1-3. Generally, in order for a superior court to acquire jurisdiction, in a civil action, of a minor who is a resident of the State but of a county other than that in which the suit is brought, such minor must be timely served personally by a second original; and when the return of service is made to the proper court, and an order is taken appointing for the minor a guardian ad litem, and such guardian ad litem agrees to serve, all of which shall be shown in the proceedings of the court, the minor shall be considered a party to said proceedings. Code, §§ 81-212, 81-215. In Peck v.La Roche, 86 Ga. 314 (12 S.E. 638), where the question involved was the validity of service of a process after the beginning of the term to which it was returnable, the court speaking through Chief Justice Bleckley said: "The first process, standing alone, was no authority to the sheriff to effect service after the return or appearance term of the case. Had he served it before that time, though less than ten days, the act of 1885 would have aided the service, and made it good, not for the appearance term named in the process, but for the next succeeding term, the act substituting the latter in place of the former as the appearance term. Acts 1884-5, p. 103. This act, however, changes the prior law only where the time of service is before the regular appearance term, but too late for that term." The act of 1885 (Ga. L. 1884-5, p. 103) is embodied in section 81-218 of the Code, which provides: "Whenever process is not served the length of time required by law before the appearance term, such service shall be good for the next succeeding term thereafter, which shall be the appearance term." It does not appear in this case that any order was taken to perfect service so as to make it good for the next term. Service of a second original of a petition and process made after the appearance term of the court is a nullity, in the absence of an order to perfect service.Brown v. Tomberlin, 137 Ga. 596 (73 S.E. 947). The record in the present case shows that the return of service on Mary Jean Thurman, a minor, dated May 3, 1937, was not marked filed in the office of the clerk of Fulton Superior Court until April, 1945. The reason suggested for the delay by counsel for the defendants in error being that "it was not attached to the original papers, and was misplaced and not located until April, 1945, when it was marked filed." The order of the trial court dated May 25, 1945, now under review, was made upon a petition of the receiver to amend orders of sale theretofore granted. Based alone on evidence consisting of the purported return of service, the court included in its decree the following: "It further appears to the court from the return of service in this case that a copy of the original petition in this case was duly served upon the said Mary Jean Thurman, and that return thereof was duly made on a second original in the manner and form provided by law, and lawful service is hereby decreed to have been made upon the said Mary Jean Thurman." Under the authorities above cited, it was erroneous to include the quoted sentence in the decree, and there being a timely exception to this portion of the decree, it is directed that the said sentence be stricken therefrom; provided, however, that this direction shall not be construed as the granting of such substantial relief as would relieve the plaintiff in error of costs.

4. Between the time of the purported service on May 3, 1937, and the marking of the same of file in April, 1945, numerous things connected with the original petition had taken place. On June 29, 1937, the remaindermen under the will, including Mary Jean Thurman by Gordon Mitchell who alleged himself to be "guardian ad litem for said minor under appointment of the court in said case," filed their answer and cross petition seeking affirmative relief, not only against the petitioner, Mrs. L. G. Thurman, but also against W. S. Askew, another alleged life tenant, who was made a party defendant and the process as to him made returnable to the September term, 1937, of Fulton Superior Court, at the instance of the persons bringing the cross-action. Substantial relief was granted to the remaindermen, including Mary Jean Thurman, by a judgment and decree dated December 20, 1938, which included, among other things prayed for in the cross-action, a judgment for damages for waste for $4000 in favor of the remaindermen and making Mrs. L. G. Thurman's life estate subject thereto. On April 17, 1944, Mary Jean Thurman filed her petition in Fulton Superior Court against Mrs. L. G. Thurman and others, alleging that she was a minor fifteen years of age when the original equitable petition of Mrs. Thurman was brought in 1937, and that said minor had reached her majority on March 17, 1943. She sought cancellation of the decree of December 20, 1938, and an injunction against the receiver to prevent him from selling property of the estate, and among the grounds she asserted that she had never been served with the original suit, filed on April 13, 1937, or a copy of the same or the process thereof; and that, although a guardian ad litem had been appointed for her, she had never ratified any acts of said guardian or any of the actions as a result of said suit. In a final judgment thereon dated June 30, 1944, the trial judge, who heard the case, by agreement of counsel, without a jury on the general demurrer and on the main issue formed by the pleadings, denied the prayers of Mary Jean Thurman to set aside the decree rendered on December 20, 1938, and dismissed her petition. In so far as the record in the present case discloses, there was no exception to, or appeal of, the final judgment dated June 30, 1944; and, in the absence of exception or appeal therefrom, such judgment became the law of the case. Griffin v. Beasley, 173 Ga. 452 (160 S.E. 500);Kelly v. Strouse, 116 Ga. 872, 892 (43 S.E. 280).

5. The order of May 25, 1945, making parties of the heirs at law of a deceased remainderman, was appropriate and authorized under the reservation of the decree of December 20, 1938, providing: "The court expressly retains jurisdiction of this matter for the purpose of passing orders of sale of the property involved, orders providing for the safekeeping of the proceeds of sale pending the determination of all matters not now adjudicated, and any and all other necessary or appropriate orders."

Judgment affirmed, with direction. All the Justices concur.