Helton v. Helton , 47 Ga. App. 845 ( 1933 )

Guerry, J.,

dissenting. B. B. Helton filed suit to the April term, 1932, of the superior court of Barrow county, against W. H. Helton. The note on which the suit was based was dated March 19, 1919. W. H. Helton filed his plea alleging that he was not, at the time of the signing of said note, “in a mental condition to make a contract and did not know what he was doing.” The trial resulted in a verdict for the plaintiff at the October term, 1932, of said court. Miss Mattie Helton, alleging that she was the guardian for W. H. Helton, brought a petition to the superior court of Barrow county, asking that the judgment against W. H. Helton be declared null and void and be set aside, for the reason that W. H. Helton was adjudged a lunatic and committed to the State Sanitarium in 1916, and that in 1918 she was appointed as guardian of the estate of W. H. Helton, and such guardianship had never been terminated, and that the plaintiff in the case was familiar with these facts. The record shows that W. H. Helton shot at his wife on March 4, 1916. It shows that on March 6, 1916, W. M. Maxey made affidavit in the court of ordinary that W. H. Helton was a lunatic and subject to be committed to the Georgia State Sanitarium, and prayed that a commission issue to investigate the same. Three relatives of W. H. Helton acknowledged service on the same day. The commission was appointed on the same day. A hearing was had on the same day and W. H. Helton was adjudged to be a lunatic and a fit subject for the State Sanitarium on that day. All of these acts took place March 6, 1916. On January 7, 1918, Mattie Helton filed a petition to the court of ordinary of Barrow county, alleging that Henry Helton (W. H. Helton) has beén adjudged a lunatic and is confined in the asylum at Milledgeville, and prayed that she be named as his guardian to take charge of certain property inherited by Henry Helton. At the February term of the court of ordinary, 1918, of Barrow county, Miss Mattie Helton was named as guardian, it appearing that citation had been duly published and letters of guardianship were issued to her. The letters stated that Henry Helton has been adjudged a lunatic and is now confined in the State Sanitarium at Milledgeville. It further appears from the record (it being silent as to the date of his release from Milledgeville) that Henry Helton was tried at the December term, 1918, under an indictment returned at the March term, 1916, of Barrow superior court, charging him with assault with intent to murder, and at said December term was convicted of shooting at another. It appears further that, the consideration of said note was money loaned to W. H. Helton to pay the fine imposed on him as a result of the conviction.

One who has been legally adjudged a lunatic and for whom a legal guardianship exists can not make a binding contract even during lucid intervals; nor can he make such a contract after sanity is restored, until the guardianship is dissolved. Civil Code (1910), § 4237. The judgment attacked in this case is not the judgment committing W. H. Helton to the Sanitarium at Milledgeville, but is the judgment appointing Miss Mattie Helton as guardian for W. H. Helton, in February, 1918. If Miss Mattie Helton was the legally appointed and duly qualified guardian for W. H. Helton at the time of the signing of this note the judgment rendered against Helton thereon is a nullity. Did the court of ordinary, on the face of the record, have authority to appoint Mattie Helton as guardian ? I think so. Every presumption is in favor of the judgment of a court of ordinary, and it is not subject to collateral attack except where the record discloses a want of jurisdictional facts. Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009); Riddle v. Shoup, 147 Ga. 387 (94 S. E. 236); Jones v. Smith, 120 Ga. 642 (48 S. E. 134). It is to be presumed that every fact necessary to make it valid and binding was before the court. “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. 1 Black on Judgments (2d ed.) 406, § 271.” “A judgment rendered by a court of competent jurisdiction is not subject to collateral attack, where it is on its face apparently valid, and such defects as existed in the proceedings upon which the judgment was based could have been cured by amendment.” Hardy v. Luke, 18 Ga. App. 423 (89 S. E. 540). See also Freeman v. Bank, 20 Ga. App. 334 (93 S. E. 34). A judgment may not be collaterally attacked by showing the facts and allegations of the petition on which it is based were untrue, where no fraud is alleged or shown. I am therefore of the opinion that, although it may appear on its face that the record committing W. H. Helton to the Sanitarium was irregular, it does not appear on the face of the record of the judgment of the ordinary issuing letters of guardianship that he did not have jurisdiction to issue such letters, and such judgment directing that such letters be issued is regular on its face and can not be collaterally attacked, and I think for this reason the judgment should be reversed.