Opinion
33353.
DECIDED FEBRUARY 9, 1951.
Affidavit of illegality; from Webster Superior Court — Judge Gower. October 2, 1950.
Cleveland Rees, T. B. Bagley, for plaintiff.
Ernest C. Britton, for defendant.
1. A distress warrant is final process, unless arrested by a counter-affidavit, and the property of the defendant may be levied on and sold under it as under other executions.
2. The issuing of a distress warrant is an ex parte proceeding, and there is no provision of law for the defendant in the warrant to be represented at the time it is issued.
3. The fact that the tenant was adjudged insane prior to the time the distress warrant was issued and had no guardian at that time does not render the distress warrant void, if the tenant was sane when the rent contract was made and during the period when the rent accrued.
4. In the absence of a showing to the contrary, the presumption is that the tenant in this case was sane prior to the time he was adjudged insane.
5. Where the rent was due under a valid contract, the plaintiff would have the right to sue out a distress warrant to collect the rent, although the defendant may have become insane after the rent fell due and was insane and had no guardian at the time the distress warrant was sued out and levied.
6. Under the facts as disclosed by the record in this case and the law applicable thereto, the trial judge erred in sustaining the affidavit of illegality and in dismissing the levy.
DECIDED FEBRUARY 9, 1951.
B. S. Miller sued out a distress warrant before a justice of the peace in Webster County against B. L. West, on May 11, 1948, for $875 rent on certain farms in Webster County for the year 1945. The distress warrant was levied by the sheriff on 40 acres of land in Webster County, as the property of B. L. West, and the tenant in possession was notified of the levy on May 11, 1948. The property levied on was advertised during the month of June, 1949, for sale on the first Tuesday in July, 1949; and W. L. Hudson, as next friend of B. L. West, filed in Webster Superior Court an affidavit of illegality to the levy under the distress warrant. It is alleged in the affidavit of illegality that the distress warrant and the levy thereunder are void because B. L. West was insane and had no guardian when the warrant was issued and levied, and that the warrant is proceeding illegally in that West is still insane and does not have a guardian to represent him. At the trial, counsel for the defendant made an oral motion to dismiss the levy on the ground that the defendant in the distress warrant was insane and confined in the Milledgeville State Hospital at the time that the distress warrant was issued and that no guardian had been appointed for him at that time, or thereafter. In arguing the motion to dismiss, it was admitted by counsel for the plaintiff in error that the defendant in the distress warrant had been adjudged insane on April 3, 1946, and was, at the time of suing out the distress warrant, confined in the Milledgeville State Hospital for the Insane; that no guardian had been appointed for him; and that his sanity had not been judicially determined to have been restored as provided for in the act of 1947, although West had been discharged from the Milledgeville State Hospital and was present in court at the time of the trial. The judge of the superior court sustained the illegality and dismissed the levy on the ground that B. L. West was insane and had no guardian at the time the distress warrant was issued, and that he had not been restored to his sanity as provided by law, nor had any guardian been appointed for him. The plaintiff excepted by direct bill of exceptions to this court.
Any person who may have rent due may, by himself, his agent or attorney, make application to a justice of the peace in the county where the debtor may reside or where his property may be found, and obtain a distress warrant for the sum claimed to be due for rent, on the oath of the party, his agent or attorney, in writing, and the warrant may be levied on any property belonging to the debtor, and the property may be sold as in cases of levy and sale under execution. Code, § 61-402. A distress warrant is final process, unless arrested by a counter-affidavit, and the property of the defendant may be levied on and sold under it as under other executions. Elam v. Hamilton, 69 Ga. 736 (1); J. B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41, 43, 44 ( 26 S.E.2d 255); Gober v. Barry, 4 Ga. App. 4 ( 60 S.E. 807); Sams v. Covington Buggy Co., 10 Ga. App. 191 ( 73 S.E. 18); Phillips v. Rawls, 46 Ga. App. 200 ( 167 S.E. 189). The issuing of such warrant is an ex parte proceeding, and there is no provision of law for the defendant in the warrant to be represented at the time it is issued. The fact that the tenant, B. L. West, was adjudged insane on April 3, 1946, prior to the time the distress warrant was issued on May 11, 1948, and had no guardian at that time would not render the distress warrant void, if the tenant was sane when the rent contract was made and during the period when the rent accrued in the year 1945. In the absence of evidence or a showing to the contrary, the presumption is that West was sane prior to the time when he was adjudged to be insane on April 3, 1946. Therefore, where the rent was due under a valid contract for the year 1945, the plaintiff would have the right to sue out a distress warrant to collect the rent, although the defendant may have become insane after the rent fell due and was insane and had no guardian at the time the distress warrant proceeding was instituted and levied. "A judgment obtained against an insane person is not void; and where an execution based on such judgment is levied on land belonging to such defendant in fi. fa., and the land sold at sheriff's sale, a purchaser at such sale would be protected." Ward v. Miller, 143 Ga. 164 (1) ( 84 S.E. 480); Fields v. Union Central Life Ins. Co., 170 Ga. 239, 240 (8) ( 152 S.E. 237). A void judgment can be attacked by illegality, but one that is only voidable cannot be so attacked. Whiteley v. Downs, 174 Ga. 839 (2), (6) ( 164 S.E. 318). A levy under a void or illegal distress warrant can be attacked by an affidavit of illegality, or when such warrant is proceeding illegally it can be thus attacked. A distress warrant is a summary process, and ordinarily a defendant's first opportunity to defend against it is after it is levied.
Persons not sui juris may appear either by guardian or next friend. Code, § 37-1003. After the property levied on under the distress warrant was advertised to be sold on the first Tuesday in July, 1949, W. L. Hudson as next friend of B. L. West filed the affidavit of illegality to the distress warrant and the levy thereunder, and the sale of the property was postponed.
Under the facts as disclosed by the record and the law applicable thereto, the trial judge erred in sustaining the affidavit of illegality and dismissing the levy on the ground that the distress warrant was void because West was insane and had no guardian at the time the distress warrant was issued and levied, and that he had not been restored to his sanity as provided by law.
Judgment reversed. Worrill, J., concurs. Felton, J., concurs specially.
In cases where infants or incompetent persons without a guardian are proceeded against, it is the action of a court in appointing a guardian ad litem or otherwise providing for due representation of the infant or incompetent that gives to the court jurisdiction to enter a final judgment in a justiciable controversy. See Code, § 81-212. In this case the defensive action was filed by a next friend and there was a duty on the part of the court to either approve the representation or appoint additional representation by appointing a guardian ad litem. I do not wish to be understood as holding that where a person has been adjudicated insane, and no guardian has been appointed, an ex parte proceeding in which no defensive action is taken in time to prevent the final execution of the process is valid, because, while no special service of the process is required, notice by levy and seizure is contemplated as notice, and the rights of incompetents would be too greatly jeopardized. One proceeding against one already declared incompetent in such a way must do so at his own risk, and in my judgment, if he does so without first having a guardian appointed and no next friend acts for the incompetent, he should have a guardian appointed and give him notice of the proceedings before he attempts to have the process finally executed. I agree to the judgment in this case because the defensive action was filed and the court presumably and by implication passed on the sufficiency of the incompetent's representation and by so doing gave the court jurisdiction of the case.