Dampier vs. McCall et al.

Supreme Court of Georgia1887-05-01

78 Ga. 607

Summary · law.co

Holding. The court affirmed the dismissal of the bill. A minor's selection of a resident guardian in a county other than his original residence establishes that county as his domicile and grants the local court of ordinary jurisdiction over guardianship matters; once jurisdiction is properly established and a guardian is served in a partition suit, the resulting judgment is conclusive on the minor absent fraud, and a court of equity will not later inquire into the judgment's merits.

John Dampier died intestate, leaving his minor son Remer Dampier as his sole heir to a tenancy in common interest in land located in Lowndes County. Remer was a resident of Brooks County at the time of his father's death but, being over fourteen years old and without parents or guardian, relocated to Lowndes County and selected his cousin H. J. Dampier as his guardian. The court of ordinary in Lowndes County appointed the cousin as guardian. When a co-tenant, J. D. McCall, petitioned for partition of the land, the superior court granted the partition with proper service on the guardian. The court of ordinary later authorized the guardian to sell the property, and the sale proceeded.

After reaching majority, Remer Dampier filed suit to set aside the guardianship appointment, the partition judgment, the authorization for sale, and the sale itself. He sought an accounting of rents and profits and a decree for resale and division of proceeds. The trial court sustained a demurrer to his complaint and dismissed the bill. On appeal, the appellate court examined whether the courts had jurisdiction to proceed and whether any fraud had tainted the proceedings. Finding that Remer's act of relocating to Lowndes County and selecting a resident guardian there effectively established that county as his domicile, the court determined that the court of ordinary properly acquired jurisdiction over him as ward. The superior court likewise had jurisdiction to grant partition once the guardian was properly served, and the subsequent sale order was regular and authorized. Because no fraud was alleged or suggested in any of the proceedings and all actions were conducted according to law, the court upheld dismissal of the bill.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Jurisdiction of court of ordinary over minor based on guardian's county residence
Conclusiveness of partition judgment against minor when guardian is properly served
Authority to order sale of minor's property through guardianship
Standard for setting aside guardianship and property dispositions absent fraud

Procedural posture

The plaintiff-in-error, Remer Dampier, appealed the trial court's sustaining of a demurrer and dismissal of his equity bill challenging guardianship appointment, partition judgment, and sale of property.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

John Dampier died a resident of the county of Brooks, leaving as his only heir at law the plaintiff in error, Remer Dampier. At the time of his death, he was the tenant in common of a certain lot of land in the county of Lowndes with J. D. McCall. Remer Dampier was a minor without either father, mother or guardian, resident at the time of his father’s death in the county of Brooks. He then went into the county of Lowndes, and being over fourteen years of age, he chose H. J. Dampier, his cousin, for guardian. The court of ordinary accordingly appointed H. J. Dampier his guardian. McCall sued out a petition for partition of this land, which was duly served upon H. J. Dampier as guardian of Remer Dampier; and the superior court granted a partition of the land between McCall and Remer Dampier, the minor.

Remer Dampier, having arrived at age, brought his bill, in which he alleges that he was a resident of Brooks county at the time his cousin, H. J. Dampier, was appointed his guardian; and also alleges the facts which I have stated ; and he prays that the partition of this land between himself and McCall be set aside ; that the judgment of the court of ordinary appointing H. J. Dampier his guardian be also set aside; that an order which had been granted by the court of ordinary of Lowndes county, authorizing a sale of this land by the guardian, and the sale by the guardian under such order, be set aside; and that McCall, and others who claim under him, be decreed to account to him for the rents, profits and waste; and that a general decree be made for the sale of the land and the division of the money. This bill was demurred to, and the superior court sustained the demurrer and dismissed the bill. This is excepted to, and is the error assigned in this case.

Under section 1693 of the code, where a minor has neither father, mother nor guardian, he may change his residence at will. He may select any county he chooses to be the county of his residence; and when this minor went into the county of Lowndes, and procured his cousin to be appointed his guardian, he thereby selected the county of Lowndes as the county of his residence; and the court of ordinary of that county, by virtue of his act in selecting his cousin, who was a resident of the county, for his guardian, acquired jurisdiction of the ward, this minor, and the letters of guardianship were properly issued.

The superior court had jurisdiction also to grant a partition of the land between McCall and this minor. The guardian having been served with the process and brought before the court, the judgment is conclusive on the minor: and a court of equity, where, as in this case, there is no suggestion of fraud, will not afterwards inquire into it.

The court of ordinary of the county of Lowndes also had jurisdiction to order a sale of the property, where it was made to appear that it was for the interest of the minor that it should be sold. And that sale divested the minor of all title to this land.

There is no suggestion of fraud in any of the proceedings had before the ordinary or before the superior court in relation to this matter; but all appear to have been regular and right; and under the circumstances, we think the court below did right to dismiss this bill for want of equity.

The judgment of the court below dismissing the bill is therefore affirmed.