Doe ex dem. Johnson v. Roe , 27 Ga. 555 ( 1859 )

By the Court.

McDonald J.

delivering the opinion.

[1.] The first error assigned in the record, is on the decision of the Court directing an order of the Court passed at March Term, 1834, appointing John W. Taff guardian, pendente lite, of Harriett Taff, an infant, in an information filed by James Kirkpatrick, to set aside a grant for a tract of land to Harriett Taff, alleged to have been fraudulently drawn by her, as an orphan. The Court below was satisfied with the evidence before it, that the order was passed by the Court at the time specified, and he only directed that to 'be done, which ought to have been done at the time it was passed. We see no error in this order or judgment of the Court!

[2.] After the plaintiffs had closed their case, and the defendants had submitted their testimony to the jury, the plaintiff offered to prove certain matters in rebuttal of the defendants’ evidence, which are set forth in the statement of the facts of the case. The first fact proposed to be proved was, that the guardian, John W. Taff, was never served with the scire facias sued out to annul the grant, and had no notice of it. That he never accepted the appointment of guardian, ad litem; that he was not at Court when it was made; had no notice of it; was never at Cass Court, and never appeared by attorney or otherwise to defend the sci fa., and that the same proceeded by default. That the service on the scire facias was a forgery; that the guardian, ad litem, was appointed at the instance of the informer, James Kirkpatrick, and that he induced the Court to make the appointment of a stranger who was not present, by stating that John W. Taff was the legal guardian ©f Harriett Taff, and that his statement was false, and that Harriett Taff was born in Houston county, in this State, and was never out of the State until her marriage in 1845. The Court refused to admit evidence to any of the said points, and the plaintiffs excepted. If all the facts proposed to be proven are true, the judgment rendered against the defendant in that proceeding, was unquestionably a nullity. The proceeding to set aside the grant was against an infant, and an orphan, and by the law the return made on her behalf, could not be declared fraudulent until .her legal guardian had been made a party to the scire facias, or other discreet person appointed by the Court in which the case was tried,’ to defend the cause for her. The scire facias was issued on the 14th day of March, 1834, and was returnable to the September Term of the Court thereafter. It issued against Harriett Taff alone. It does not purport to have been served. upon her, but a return of service on John W. Taff, described as her guardian, is made on the scire facias. John W. Taff was appointed guardian, ad litem, at the instance of the informer, and before the return Term of the case. He does not appear to defend the case. There is no appearance. These ■circumstances alone excite very strong suspicions of the fairness of the proceedings, and are almost sufficient to warrant us in saying that the judgment was null. We do not say so, however. But we say that the tendered evidence to prove that the service of the scire facias given in evidence was a forgery, that the guardian, ad litem, never accepted the trust, and that the guardian, ad litem, was appointed at the instance of the informer, ought to have been admitted. It was urged that the defendants are Iona fide purchasers without notice. But if the judgment by which the title is claimed to have passed from the drawer is a nullity, what becomes of the title ? There were defects enough patent on the face of the proceedings, to awaken the suspicions of a prudent man. But the consideration to which a bona fide purchaser is entitled, is not in this case. No title can be derived under a null judgment. It is not the case of a good judgment which is subsequently set aside or reversed. But it is the case of a void judgment without a proceeding to annul it, if the proof offered can be made. That the informer suggested to the Court the name of a person to be appointed guardian ad litem, would not have been objectionable perhaps, if the infant herself had been served, and notified to suggest a proper person, and she had failed or refused. But that is not the case. The informer moved the appointment before there was a service, and his appointee was served when he was not a party.

[3.] We think there is no error in the refusal of the Court, to rule out and withdraw from the jury the record of the scire facias, and the proceedings thereon. We will not consider whether, in strict law, either party was entitled to an appeal, as a matter of right, in such proceeding; because the Courts who were entrusted with the execution of the laws in those days,uniformly allowed appeals; and to hold to the contrary now, would unsettle titles to property to a vast amount, which originated and matured under the authoritative judicial construction of the parties’ rights.

[4.] There was a service entered on the writ of scire facias, which was sufficient to authorize the submission of the evidence to the jury, and it was in fact admitted without objection.

The plaintiffs submitted in writing many requests to the Court to charge the jury. That in regard to the right of appeal we have already disposed of. The remaining requests are upon matters which might be remedied by proof, and do not necessarily avoid the proceedings. The judgment of the Court below must be reversed, however, on the ground which we have stated.

Judgment reversed.