Pass v. Pass , 98 Ga. 791 ( 1896 )

Simmons, Chief Justice.

Whether a judgment can be attacked collaterally by a party thereto as void because of fraud in its procurement, is a question upon which courts have differed. (See Van Fleet on Collateral Attack, §550 et seq.; Black, Judgments, §§290, 170; Freeman, Judgments (ed. 1892), §336; Stephen, Dig. Evidence, Art. 40; Taylor, Evidence, §1713; Wharton, Evidence, §797.) As to a judgment discharging an administrator, however, the question is settled in this State by our code, which declares: “A dis-

charge obtained by the administrator by means of any fraud practiced on the heirs or ordinary, is void, and may be set aside on motion and proof of the fraud” (§2609); and “a judgment that is void may be attacked in any court and by anybody.” (§3828.) “The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” (§3594.) See also Jacobs v. Pou, 18 Ga. 346, where is was said that a judgment by a court of ordinary discharging an administrator could be impeached in the superior court for fraud. The court below in the present case erred, therefore, in holding that the judgment discharging the administrator could not be impeached in the superior court.

Whether the three years limitation provided for by the act of 1876 (Code, §2914a), is applicable in a case of this character, is a question we are not required in this case to decide; for even if the limitation be applicable in such cases, the declaration does not on its face disclose that the action is barred. It appears that the action was filed in November, 1894, that the settlement with the heirs was had in 1890, and that between these dates the judgment discharging the adminstrator was rendered, and that the fraud was not discovered until after the judgment was rendered; but nothing further appears as to the time of its rendition or of the discovery of the fraud. Where it does not affirmatively appear upon the face of the declaration that the cause of action is barred by the statute of limitations, this defense cannot be made by a general demurrer setting up that the action is barred by the statute, but is matter for plea. Stringer v. Stringer, 93 Ga. 321; Coney v. Horne, Ib. 726.

. The declaration stated a cause of action, and the court below erred in sustaining the demurrer.

Judgment reversed.