Opinion
43463.
ARGUED FEBRUARY 5, 1968.
DECIDED APRIL 4, 1968.
Appeal from ordinary. Jones Superior Court. Before Judge Carpenter.
Robert E. Barfield, for appellant.
George L. Jackson, for appellee.
1. Where on a motion for reconsideration of the sustaining of a general demurrer to a petition there was a prayer that the judgment be vacated and set aside and a rule nisi was issued thereon, an appeal within 30 days after an order denying the motion is timely.
2. (a) Where an order has been regularly entered in the court of ordinary declaring that no administration is necessary on the estate of one who died intestate, so long as that order is outstanding the court of ordinary has no jurisdiction to entertain an application to have an administrator appointed for the decedent's estate.
(b) A judgment or decree which does not appear to be void from the face of the record is binding between the parties thereto until it is set aside by a direct attack in the court wherein it was obtained.
(c) On an appeal from the court of ordinary to the superior court, the latter has no greater powers on the matter than did the court of ordinary; the jurisdiction is the same.
ARGUED FEBRUARY 5, 1968 — DECIDED APRIL 4, 1968.
Emmett L. Long died intestate December 20. 1964, while a resident of Jones County. Mrs. Bertha Batchelor Long, alleging herself to be his widow and sole heir at law, applied for and obtained in the Jones Court of Ordinary an order declaring no administration on his estate to be necessary. Thereafter Mrs. Sara M. Long applied to the Jones Court of Ordinary for the appointment of an administrator of his estate, alleging that the decedent had left a valuable estate and that she was his sole heir at law by reason of the following: She had married the decedent in due form of law June 28, 1947, and had never been legally divorced from him to the time of his death. She alleged, however, that a divorce decree was rendered between them in Bibb Superior Court December 5, 1955, of which she had been unaware until some time in January, 1967; that attached to the petition for divorce which decedent filed against her and on which he obtained the decree, was an acknowledgement of service purporting to be signed by her, but that the signature was a forgery and was not in fact made by her, she having been a patient at the Milledgeville State Hospital suffering from a mental illness at the time.
The court of ordinary sustained Mrs. Bertha Batchelor Long's general demurrer to the application for the appointment of an administrator, and the applicant appealed to Jones Superior Court, where, after consideration of the matter, the general demurrer was again sustained and the application dismissed October 30, 1967. A motion to reconsider its ruling, with prayer that the judgment sustaining the demurrer be vacated and set aside, was filed and on November 27, 1967. That motion was denied.
On January 9, 1968, applicant filed her notice of appeal from the order of November 27, 1967, "which said order overruled the motion of plaintiff to set aside the court order of October 30, 1967, sustaining the defendant's general demurrer." Error is enumerated as to both orders.
1. The question arises as to whether the appeal must be dismissed because the original order sustaining the general demurrer was entered more than 30 days prior to the filing of the notice of appeal. If the motion to reconsider had not carried a prayer that the judgment be vacated and set aside this position might have merit. LeCraw v. L. P. D., Inc., 114 Ga. App. 281 ( 150 S.E.2d 927). But since there was a prayer to set the judgment aside, with a rule nisi thereon, we conclude that there was no final judgment from which an appeal could be entered until that motion was disposed of. Pazol v. Citizens Nat. Bank of Sandy Springs, 112 Ga. App. 161 ( 144 S.E.2d 117); State Bank of Leesburg v. Hatcher, 106 Ga. App. 735 ( 128 S.E.2d 339). In any event, however, it would appear from the holding in Van Dyke v. Van Dyke, 120 Ga. 984 ( 48 S.E. 380), that an appeal will lie from the order denying the motion to reconsider.
2. Appellant contends that it is necessary that she get a representative of the decedent's estate appointed in order that she may proceed against him in Bibb Superior Court to have the divorce decree set aside, and urges this as the reason why it was error to sustain the general demurrer to her application.
Appellee's position is that in the application to have an administrator appointed appellant alleges the existence of a divorce decree, not void on its face, and that this discloses prima facie a lack of standing on the part of applicant to file the application. With this we must agree.
In the first place, the court of ordinary had no jurisdiction to entertain an application for the appointment of an administrator so long as the order declaring no administration to be necessary was outstanding. There was no attempt to set this aside.
In the second place, although the divorce decree may be void, it does not so appear on its face. That the signature to the acknowledgment of service was a forgery does not so appear; it is a matter which must be proven. Likewise, that the defendant in that action was at the time a patient at the Milledgeville State Hospital, suffering from a mental illness, does not appear from the face of the record; that, too, must be proven. And since the decree does not appear to be void on the face of the record, it is binding upon the parties until set aside by a direct attack in the court where it was obtained. Hood v. Hood, 143 Ga. 616 ( 85 S.E. 849); Thomas v. Lambert, 187 Ga. 616 ( 1 S.E.2d 443), and citations.
Appellant's reliance on Parish v. Parish, 32 Ga. 653 is misplaced. In that case the petition for divorce, filed in Bulloch Superior Court, alleged that plaintiff was residing in Emanuel County, and when the Sheriff of Bulloch County was unable to perfect service he entered a return of non est inventus, after which the court ordered service perfected by publication. In the opinion the Supreme Court pointed out that since there had been no showing that the defendant was not a resident of this State the order to perfect service by publication was wholly unauthorized. Thus, the record showed on its face that the defendant had never been lawfully served, and the court, having no jurisdiction of him, was without jurisdiction to grant the divorce. The judgment was void on the face of the record.
Nor is a different result required by Conyers v. Bruce, 109 Ga. 190 ( 34 S.E. 279), where it was held that in a contest between a creditor and the heirs at law of an intestate as to the necessity for an administration, the creditor claiming a debt against the estate and the heirs denying it, it is not necessary for the creditor to establish conclusively the existence of the debt, a prima facie showing being all that is necessary. Here, instead of a prima facie showing of applicant's right to proceed, her application shows prima facie that, having been divorced from the decedent, she has no right to proceed.
(c) On the appeal from the court of ordinary to the superior court, the latter, as an appellate court, has only the jurisdiction of the court of ordinary, which has no equitable powers. Byrd v. Riggs, 209 Ga. 59 (2a) ( 70 S.E.2d 755). Consequently, the sustaining of the general demurrer was proper.
Judgment affirmed. Felton, C. J., and Whitman, J., concur.