Petition for Writ of Certiorari — Bowman v. Bowman

Supreme Court of the United States

OCTOBER TERM, 1953

Dora LEE BowMAN, ADMINISTRATRIX

OF THE EstaTE oF Frep E. BowMAN AND

ADMINISTRATRIX DEBONIS NON OF THE

Estate oF Frank K. Bowman, Petitioner

vs.

Joanne W. Bowman

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

GEORGIA AND BRIEF IN SUPPORT THEREOF.

James L. Moore

Witt G. Moore

Counsel for Petitioner.

——— nnn

WILLIAMS PTS CO-ATLANTA

INDEX

SUBJECT INDEX

Page

Petition for writ of certiorari....................... 1

ummary statement of matter involved............. 2

Reasons relied on for allowance of the writ.......... 5

Federal questions on which error is assigned......... 8

RR UE Ws 5 ork cr et oe 9

Brief in support of petition........................, 11

Opinion of the court below........................ 11

Fe NSD PRES Ee ae eae aM EAE PERS 11

Se OE SN ee a 11

Authorities and argument........................ 12

C. Privileges claimed under the Constitution of

the United States were considered and denied.

TABLE OF CASES CITED

SE Sin th, es OO UD, GB, BAT os es kik os ccs

Kentucky Union Co. vs. Kentucky, 219 U.S., 140.......

Crawley vs. Selby, et al., 208 Ga., 580, 67 S.E., 2d, 775. 6-12

Bowman vs. Bowman, 207 Ga., 226, 60 S.E., 2d, 242... 6-18

Bowman vs. Bowman, 206 Ga., 262, 56 S.E. 2d,

cibied tras eHD smh Dee kos OMe cao Dee A Lok 7-12-13-15

Greenfield vs. McIntyre, 112 Ga., 691, 38 S.E., 44.......

rummey vs. Bentley, 114 Ga., 746, 40 S.E., 765........ 12

Strickland vs. Fender, 142 Ga., 132, S.E., 561.......... 12

Yerby vs. Chandler, 194 Ga., 263, 21 S.E., 2d, 686....... 12

Clark vs. Woody, 197 Ga., 683, 30 S.E., 2d, 181......... 12

Murray vs. McGuire, 129 Ga., 269, 270, 58 S.E., 841.... 18

Turner vs. Holbrook, 145 Ga., 603, 604, 89 S.E., 700..... 18

Elliott vs. Johnson, 178 Ga., 384, 386, 173 S.E., 399..... 13

Benton vs. Turk, 188 Ga., 710, 722, 4 S.E., 2d, 680...... 13

Burkhalter vs. Planters Loan & Savings Bank, 100 Ga.,

Zeagler vs. Zeagler, 190 Ga., 220, 9 S.E., 2d, 268..... 13-14

is vs. Mandeville, 195 Ga., 251, (6), 24 S.E. 2d, 28.. 18

vs. Morel, 22 Ga., App., 95 S.E., 816........... 13

P.O OES 66.02 62 6 0. 9:64 0-08 0:00.86 26's b'O 6.0 6 60°06: 0 00-0 8.66

TABLE OF CASES CITED—( Continued)

Page

Richey vs. First Natl. Bank of Commerce, 180 Ga., 751,

as I oi nob 655 kok na os nga ccs oc 14-15

Wood vs. Brown, 121 Ga., 471, 49S.E, 295.107 772777" 14

Smith vs. Smith, 101 Ga., 296, 27 S.E., 975...) 14

SRE SERRE REGRETS A ga eI eT ae ae 14

Plowden vs. Plowden, 47 Ga., App., 751, 171 S.E., 388.... 15

Griffin vs. Haygood, 174 Ga. 22, 161 S.E.. SB1......... 15

ay Callahan Grocery Co., 163 Ga., 204, 185 Vs

McMillen vs. Cooper, et al., 125 Ga., 435, 54 S.E., 97... . 6B

—" Realty Co., vs. Eubanks, 151 Ga., 765, 108 S.E.,

CARMEN Mea MR Abe oe MEER CMD 6 WK Kb kw be Onc cc 15

Rivers vs. Brown, 200 Ga., 49, 36 S.E., 2d, 429 citing 21

. J. S., page 314, Section 1 SOREN er ee ee 16

Kelly vs. Strouse, 116 Ga., S72, 48 S.E., 280... ......6. 16

Crew vs. Hutchenson, 115 Ga., 511, 42 S.E., 16........ 16

vs. National Bank of Tifton, 170 Ga., 691, 158

ti, ES ORE a a eee ins ence 16

Southern Railway Co., vs. Stephens, 23 Ga., Apps., 200,

bette a t,o pera 17

Bowman vs. Bowman, 79 Ga. App., 240, 58 S.E., 2d, 244 17

Interprise Irrigation District vs. Farmers Mutual Canal

Cy MO MPI os. oss. cicadas. ce. ....

7-8-

Judicial Code, Section 237 (b), as amended by the Act

of February 13, 1925, c. 229, 43 Stat., 986....2.....

ii

ee

In the

‘Supreme Court of the United States

OCTOBER TERM, 1953.

BOWMAN, ET AL.,

vs. No.... SOsEe:

BOWMAN.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

GEORGIA AND BRIEF IN SUPPORT THEREOF.

TO THE HONORABLE EARL WARREN, CHIEF JUSTICE

OF THE UNITED STATES, AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES.

Dora Lee Bowman, Administratrix of the Estate of Fred

E. Bowman and as the Administratrix Debonis non of the

Estate of Frank K. Bowman, Petitioner.

Your petitioner respectfully shows:

That this is a petition for a writ of certiorari to the Su-

preme Court of the State of Georgia, io review a decision of

the Supreme Court of the State of Georgia, dated November

10, 1953, (adhered to on rehearing November 25th, 1953),

affirming a final judgment of the Superior Court of Fulton

County, Georgia, which denied motion for new trial, with

opinion (R. 139) in an equitable action brought by the plain-

tiffs against your petitioner. Justice Hugo L. Black extended

the time for filing petition for writ of certiorari to and in-

cluding April 21st, 1954.

1

2

I.

SUMMARY STATEMENT OF MATTER INVOLVED.

Petitioner is the defendant in an equitable petition filed

in the Superior Court of Fulton County, Georgia, on Janu-

ary 9, 1950, (R.6) to which an amendment in two counts

was filed by Joanne Bowman to cancel a quit claim deed

executed by Frank K. Bowman, her deceased husband, in

favor of defendant Fred E. Bowman, dated May 4th, 1949,

conveying described realty.

She alleged that she is the widow and sole heir of Frank

K. Bowman, deceased, who died on the 28th day of May,

1948.

She alleged further that on the 19th day of December,

1949, that Fred E. Bowman filed for probate both in com-

mon and solemn forms an alleged will of Frank K. Bowman,

dated 27th day of January, 1946, in which will she was be-

queathed certain household furnishings and the rest of his

estate devised and bequeathed to Fred E. Bowman, who was

named therein as Executor. That the will was probated in

common form, and that defendant had qualified thereunder

as Executor, and that she would file at the proper time a

caveat to probation of the will in solemn form.

She alleged that on June 10th, 1949, she filed in the Court

of Ordinary of Fulton County an application for twelve

months support from the estate of her deceased husband,

Frank K. Bowman, and that appraisers were appointed who

made a return setting apart to her the certain house and lot,

furniture and rents; that defendant Bowman filed a caveat

to her application and that the application was disallowed

and the year’s support refused. That she appealed to the

Superior Court from the order refusing her a year’s support,

and upon trial in the Superior Court the order of the Court

of Ordinary was reversed and the year’s support allowed.

3

That defendant Bowman appealed this decision to the Court

of Appeals who affirmed the judgment of the Superior Court,

and the judgment of the Superior Court as affirmed by the

Court of Appeals was made the judgment of the Court of

Ordinary, and the judgment was recorded in the Ordinary’s

office.

She alleged that on the 18th day of June, 1948, defendant

Bowman filed for record a Quit Claim Deed purporting to

have been executed by Frank K. Bowman in favor of de-

fendant Fred E. Bowman, dated May 4th, 1948, conveying

described realty, attaching copy of said deed as an Exhibit.

That the signature on the said deed is not the signature of

Frank K. Bowman, the deed is a forgery, that the execution

of the said deed was not the act of Frank K. Bowman, but

was the act of someone unknown to her. That the deed is null

and void and a cloud upon her title and should be delivered

up and cancelled of record. That the said realty was in pos-

session and control of the defendant Fred E. Bowman on

May 28th, 1949. That defendant Bowman is insolvent and

would be unable to respond to damages to any judgment your

petitioner may recover against him. The amendment adding

Count Two and Three contained substantially the same alle-

gations as set out in the petition, except that in Count Two,

paragraph 45—R. 26 she alleged that the decedent, Frank

K. Bowman, at the time of the alleged execution of the deed,

he did not have sufficient mental ability to be aware of the

nature of his act in executing the said deed, if he did execute

it, and did not have sufficient mental ability to make a valid

deed; in paragraph 46 she alleged for this reason the said

deed is null and void and should be delivered up and can-

celled of record. In Count Three, paragraphs 66 and 67 and

68—R. 39 she alleged that on or about March Ist, 1946,

decedent appeared at her door in Pensacola, and that he was

unable to talk and could not explain to her how he made the

4

trip, but he remained with her until on or about August 27,

1946. That the decedent showed steady improvement in his

physical and mental condition, regaining in some small de-

gree his ability to walk and talk, although he was unable at

all times to utter more than a few words. The plaintiff’s

prayer was that the court declare the said quit claim deed

from Frank K. Bowman to Fred E. Bowman null and void

and order same to be delivered up and cancelled of record,

and that a temporary and permanent receiver be appointed,

and that the defendant be restrained and enjoined from in-

terfering with the Receiver.

Defendant filed a general demurrer to the petition as

amended, and also filed an answer to the petition in which

he denied each and every material averment made in the

petition as amended.

The trial court overruled defendant’s demurrer. The Su-

preme Court of Georgia affirmed this judgment with opinion

reported in 207 Ga. 226, 60 S.E. 2nd 242 holding that the

petition set forth a cause of action for the appointment of a

Receiver to preserve the property pending a final adjudica-

tion on the probate of the will dated February 27, 1946.

Upon trial the jury returned a verdict in favor of the

plaintiff, and judgment rendered thereon in her favor—R.

48. Defendant filed his motion for new trial. This motion as

amended was overruled by the trial court—R. 51. The Su-

preme Court of Georgia affirmed, with opinion—R. 139, al-

though defendant insisted that the petition did not set forth

a cause of action for the cancellation of the deed, that the

plaintiff was not the proper person to maintain the suit, that

she did not have title to the property, and that the judgment

was void—R. 145. A rehearing was denied generally without

opinion—R. 161, and the motion for reconsideration was not

allowed to be filed. The-motion-ic-attached-ae-Exhibit “Ad.

It concluded that the plaintiff was suing as a party to whom

‘

5

the particular property had been set apart as a year’s sup-

port; that is, that she was not proceeding as an heir at law,

but that she was suing as a successor in title to the property

to Frank K. Bowman—R. 6.

II.

REASONS RELIED ON FOR ALLOWANCE OF THE

WRIT.

The questions involved are of general public interest.

They arise in an equitable action by the widow and sole heir

at law of her deceased husband to cancel a quit claim deed

executed by him as a cloud upon her title brought under

Georgia Code Sections which provide that upon the death of

an owner of any estate in realty, which estate survives him,

that the title shall vest immediately in his heirs at law, sub-

ject to be administered by the legal representative; if there

is a legal representative, the right to recover such realty shall

be in him; if there is none, the heirs may sue in their own

names, Also, upon the appointment of an administrator the

right to possession of the whole estate is in him, and as long

as said administrator continues the right to recover possession

of the estate from third persons is soley in him. If there is no

administrator, or if the administrator appointed consents

thereto, the heirs at law may take possession of the lands or

may sue in their own name.

1.

The allegations of the plaintiff’s petition indicate that she

is suing as the widow and sole heir at law of her deceased

husband—R. 6.

2. :

The Supreme Court of Georgia held: “That as the case

now comes to us the parties seeking to cancel the deed is the

person to whom the particular property has been set apart

as a year’s support. She is not now seeking to recover as a

6

sole heir at law.” By its decision it nullified the Sections of

the Code of Georgia which provide that only heirs at law may

sue in their own name to recover realty from third persons,

if there is no administrator appointed, or if there is an ad-

ministrator appointed, and he consents thereto, they may

sue in their own name—R. 139. It held in effect that the

plaintiff could maintain this suit as a successor in title to the

realty of the decedent. This holding is repugnant to these

Code Sections.

Code Sections of 1933 Code of Georgia, 113-901, and

113-907.

The intention to depart from the established rule was de-

liberate. The Supreme Court of Georgia relied on the alle-

gations that the particular property had been set apart to

the plaintiff as a year’s support. It chose to change the cause

of action with knowledge that such ruling was repugnant to

provisions of the Code Sections under which it was brought,

and in direct conflict with its decisions in every case in which

were involved the identical or similar issues as herein in-

volved.

Crawley vs. Selby, et al, 208 Ga., 530, 67 S. E., 2nd

775.

3.

The Supreme Court of Georgia held that the issues of mat-

ter of the final adjudication of the will of Frank K. Bowman,

dated February 27, 1946, and the issue that Frank K. Bow-

man died intestate are immaterial—R. 139. This holding is

in direct conflict with its former decision in this case, re-

ported in Bowman vs. Bowman, 207 Ga., 226, 60 S. E., 2nd,

242.

4,

The Supreme Court of Georgia, by affirming the judgment

of the trial court, in effect held that the plaintiff’s petition

7

set forth a cause of action for the cancellation of the quit

claim deed. This holding is repugnant to the Code Sections

under which the action is brought. It is in direct conflict with

its former decision in this case, and in direct conflict with its

decision in every case in which the identical or similar issues

were involved. Such discrimination against the defendant de-

prived him of property without due process of law and the

equal protection of the law, contrary to the provisions of the

Sth and 14th Amendment of the Constitution of the United

States.

5.

The judgment under review, R. 144, is in direct conflict

with its decision in the case of Bowman, et al, vs. Bowman,

206 Ga., 262, 56 S. E., 2nd, 407, and direct conflict with its

decisions in every case which involved the same or similar

issues.

QUESTIONS NOT IN CONFLICT.

6.

The Supreme Court of Georgia held that it was not error

to admit the order by the Ordinary setting aside a former

order denying the award of a year’s support, and substituting

therefor an order allowing the award of a year’s support over

the objection of defendant upon the ground that the order

denying the year’s support was appealed to the Superior

Court and the appeal had not been tried and was still on

appeal in the Superior Court. This holding in effect held as a

matter of law that the order denying the award as a year’s

support and appealed to Superior Court had been tried in

that court and reversed by the Superior Court, and the judg-

ment of the Superior Court was appealed to the Court of

Appeals, and affirmed by that court, and the affirmance of

that court of the Superior Court’s judgment reversing the

Court of Ordinary and allowing the award was then made

8

the judgment of the Court of Ordinary. This holding is er-

roneous.

ws

The Supreme Court of Georgia held that it was not error

to deny the admission of the documentary evidence offered

by the defendant, being the appeal from the order denying

the award of a year’s support upon the ground that the ap-

peal had never been tried, and is still pending—R. 139. This

holding is erroneous.

An authoritative decision from this Court, settling the

conflict, is necessary.

The decision under review destroys the defense of peti-

tioner as provided for by the Code Sections under which it is

brought, and does not give him the same protection as given

to other persons in other cases where the same or similar

issues are involved and deprives him of property without due

process of law and the equal protection of the law, as pro-

vided for in the 5th and 14th Amendment of the Constitution

of the United States.

The record is voluminous and the printing thereof would

be very expensive. Petitioner’s finances are meager. Counsel

for plaintiff and defendant in certiorari agree the printing

of the record should be dispensed with, therefore petitioner

moves that the printing of the record be dispensed with.

Ill.

FEDERAL QUESTIONS ON WHICH ERROR IS

ASSIGNED.

1.

The Code Sections under which the plaintiff is proceeding

in this case were not considered by the Supreme Court of

Georgia. The decision is repugnant to these provisions, and

deprives the defendant, Fred E. Bowman, of property with-

9

out due process of law and the equal protection of the law,

to which he is entitled to under the 5th and 14th Amend-

ments of the Constitution of the United States.

2.

The judgment denying the defendant’s motion for a new

trial and the opinion of the Supreme Court of Georgia de-

nying all relief to the defendant, who was sued for the can-

cellation of a quit claim deed by the sole heir at law, who

admits there was an administrator appointed, under the Sec-

tions of the Georgia Code which provides that the sole right

to bring such an action is in the administrator, if there is an

administrator appointed, is a violation of the rights guaran-

teed to him under the Sth and 14th Amendment of the Con-

stitution of the United States.

3.

The direct conflict of this decision with all of its decisions

in every case decided by it in which the identical or similar

issues were involved, deprives him of property without due

process of law and the equal protection of the law as pro-

vided in the 5th and 14th Amendment of the Constitution

of the United States.

W-H-E-R-E-F-O-R-E, your petitioner prays that a writ of

certiorari be issued out of and under the seal of this Hon-

orable Court, directed to the Supreme Court of the State of

Georgia, commanding said Court to certify and send to this

Court a full and complete transcript of the record and of

the proceedings of the said Supreme Court of Georgia had

in the case numbered and entitled on its docket, No. 18391,

Bowman, et al., vs. Bowman, defendant in error, to the end

that this cause may be reviewed and determined by this Hon-

orable Court as provided for by the statutes of the United

States; and that the order and judgment of said Supreme

10

Court of Georgia be reversed by this Court, and for such

other and further relief as to this Court may seem proper;

and your petitioner will ever pray.

Dated Atlanta, Georgia, April 10th, 1954.

Dora Lee Bowman,

Administratrix of estate of Fred E. Bow-

man, and Administratrix debonis non of

Frank K. Bowman.

PS7t 2 t___,

James L. Moore,

FLAN SEV AME

Will G. Moore,

Counsel for Petitioner.

11

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

I,

OPINION OF THE COURT BELOW

The opinion of the Supreme Court of Georgia is reported

in 78 S. E. Reporter, 2nd, page 801, and is appended to the

record (R. 139).

II.

JURISDICTION.

1. The date of the order and judgment of the Supreme Court

of Georgia, affirming the judgment overruling the motion and

denying the grant of a new trial by the trial court on No-

vember 10th, 1953 (R. 144), the date of the judgment deny-

ing a rehearing on November 25, 1953 (R. 135). Justice

Hugo L. Black extended the time for filing petition for writ

of certiorari to and including Aprildlst, 1954.

2. The statutory provisions which is believed to sustain the

jurisdiction of this court is section 237(b) of the Judicial

Code, as amended by the Act of F ebruary 13, 1925, Chapter

229, 43, statute 936.

3. The Supreme Court of Georgia in its decision and its

adherence thereto denying the motion for a rehearing passed

on the Constitutional question as herein stated and denied

them (R. 161). These decisions were a surprise to the peti-

tioner for certiorari.

III.

STATEMENT OF THE CASE.

This has already been stated in the preceding petition

under “Summary Statement of Matter Involved” I (pp.

2 to 5).

12

IV.

AUTHORITIES AND ARGUMENT.

A. Reasons relied on for allowance of the writ:

1. “Upon the death of the owner of any estate in realty

which estate survives him, only the legal representative or

administrator has the right to recover such realty except

where there is no legal representative or administrator ap-

pointed or if the administrator appointed consents thereto

the heirs may sue in their own names. The title to other

property owned by a decedent shall vest in the administrator

of his estate for the benefit of the heirs and creditors.”

Georgia Code, 1933, Section 113-901.

“Upon the appointment of an administrator, the right to

the possession of the whole estate is in him, and, as long as

such administrator continues, the right to recover possession

of the estate from third persons is solely in him. If there

is no administration, or if the administrator appointed con-

sents thereto, the heirs at law may take possession of the

lands or may sue therefor in their own right.”

Georgia Code, 1933, Section 113-907.

“It is the general rule in Georgia that, before heirs at law

of an intestate can recover land, they must allege and prove

that there is no administration upon his estate; or, if there

is an administrator, that he has consented to their bringing

the suit.”

Greenfield v. McIntyre, 112 Ga., 691, 38 S. E. 44.

Crummey v. Bentley, 114 Ga., 746, 40 S. E. 765.

Strickland v. Fender, 142 Ga., 132, 82 S. E. 561.

Yerbey v. Chandler, 194 Ga., 263, 21 S. E. 2d, 636.

Clark v. Woody, 197 Ga., 683, 30 S. E. 2d, 181.

Bowman v. Bowman, 206 Ga., 262, 56 S. E. 2d. 497.

Crawley v. Selby, et al, 208 Ga., 530, 67 S. E. 2d, 775.

13

The wife as sole heir at law cannot mantain an action to

cancel a deed executed by her deceased husband unless he

died intestate.

Murray vs. McGuire, 129 Ga., 269, 58 S. E., 841.

Turner vs. Holbrook, 145 Ga., 603, 89 S. E., 700.

Elliott vs. Johnson, 178 Ga., 384, 173 S. E., 399.

Benton vs. Turk, 188 Ga., 710, 4S. E., 2nd, 580.

Bowman vs. Bowman, 206 Ga., 262, supra.

The plaintiff’s petition as amended did not set forth a

cause of action for the cancellation of the deed.

Bowman vs. Bowman, 207 Ga., 226, 60 S. E. 2nd, 242,

and the cases cited above.

Plaintiff’s petition shows on its face that the title to the

property was not vested in the decedent at the time of his

death, and if it ever was ever vested in him it was conveyed

out of him by the quit claim deed (R. 6).

Code of Georgia, 1933, Section 81-304, provides:

“A demurrer denies the right to the relief sought, whole or

in part, admitting all properly pleaded allegations in the

petition to be true.”

A year’s support can be set aside only out of the estate

of the deceased.

Burkhalter vs. Planters Loan and Savings Bank, 100

Ga., 428, 28 S. E., 236.

Zeagler vs. Zeagler, 190 Ga., 220, 9 S. E. 2d, 263.

Harris vs. Mandeville, 195 Ga., 251, (6)24, S. E. 2d,

23.

Scruggs vs. Morel, 22 Ga. App., 95 S. E., 316. -

B. A judgment of the Court of Ordinary allowing a year’s

support for the family of a deceased person will not attach

to property which has been conveyed by the deceased prior

to his death and no longer a part of his estate.

14

Odom, et al, vs. Hoppendeitzel, 153 Ga., 20, 111 S. E.,

419,

Bank of Wrightsville vs. Powell, 163 Ga., 291, 135

S. E., 922.

Exchange Bank vs. Cash, 169 Ga., 753, 151 S. E., 345.

Backer vs. City Banking & Trust Co., 180 Ga., 672, 182

S. E. 604.

Richey vs. First Natl. Bank of Commerce, 180 Ga., 751,

180 S. E., 740.

Matthews vs. Manhattan Life Ins. Co., 55 Ga. Apps.

204, 189 S. E., 858.

Johnson vs. City of Blackshear, 196 Ga., 652, 27 S. E.

2d, 316.

A judgment setting apart a year’s support does not adju-

dicate that the property set apart existed and was the prop-

erty of the deceased.

Zeagler vs. Zeagler, 190 Ga., 220, 225, supra.

Wood vs. Brown, 121 Ga., 471, 49 S. E., 295.

Smith vs. Smith, 101 Ga., 296, 28 S. E., 665.

Dougherty-Little-Redwine Co. vs. Hatcher, 169 Ga.,

858, supra.

A conveyance by husband defeats right of year’s support

out of property conveyed.

Henry Summerford, Admr., vs. James Gilbert, 37 Ga.,

59.

Odom vs. Hoppendeitzel, 153 Ga., 20, supra.

Bank of Wrightsville vs. Powell, 163 Ga., 201, supra.

Exchange Bank vs. Cash, 169 Ga., 753, supra.

Booker vs. City Bank and Trust Co., 180 Ga., 672, 180

S. E., 604.

Richey vs. First Natl. Bank of Commerce, 180 Ge., 751,

supra.

15

Matthews vs. Manhattan Life Ins. Co., 55 Ga. App.,

204, supra.

Plowden vs. Plowden, 47 Ga. App., 751, 171 S. E., 388.

Griffith vs. Haygood, 174. Ga., 22, 161 S. E., 830.

Scruggs vs. Morel, 22 Ga. App., supra.

A judgment of Ordinary allowing a year’s support for

family will not attach to property which has been conveyed

by decedent prior to his death.

Richey vs. First Natl. Bank of Commerce, 180 Ga., 751,

supra.

Haddock vs. Callahan Grocery Co., 163 Ga., 204, 135

S. E., 747.

The plaintiff cannot maintain this action to cancel the deed

for the reason she fails te show any title to the described

property.

Spence vs. Brown, 198 Ga., 566, 32 S. E., 2d, 302.

A true owner alone can maintain an action to remove

cloud from title.

Weyman vs. City of Atlanta, 122 Ga., 539, 50 S. E.,

492.

McMillen vs. Cooper, et al., 125 Ga., 435, 54S. E., 97.

The general rule is that only the personal representative

of deceased person or his heirs at law can bring suit in order

to avoid a contract made by him while mentally incompetent

who has never been adjudicated to be insane.

1933 Code of Georgia, Section 20-206.

McClure Realty Co. vs. Eubanks, 151 Ga., 765, 108

S. E., 204.

The Supreme Court of Georgia, in its former decision,

reported 207 Ga., 226, supra, and its holding in Bowman vs.

16

Bowman, 206 Ga., 262, supra, is the law of the case and is

binding upon the trial court and upon the Supreme Court of

Georgia.

Rivers vs. Brown, 200 Ga., 49, 36 S. E., 2d, 429, citing

21 C. J. S., page 314, Section 190-3.

The Supreme Court of Georgia and the trial court are

bound by decision of the Supreme Court of Georgia in its

ruling on the demurrer in this case.

The plaintiffs claim of an award for a year’s support was

not justified.

Plaintiff’s petition shows that Frank K. Bowman died

testate, naming an Executor who qualified, and that he con-

veyed the described property to a third party prior to his

death. .

The plaintiff cannot maintain this action as a successor

in title to Frank K. Bowman.

1933 Georgia Code, Section 113-901, 113-907, supra,

and cases cited.

A failure to demur does not confess the action either in

law or in fact. A defendant who passes over, without de-

murring, a petition which is fatally defective in that it does

not set forth a cause of action, may still attack the same on

this ground by an oral motion to dismiss the case at any time

before the verdict; after verdict by motion in arrest of judg-

ment made during the term at which the judgment was ren-

dered or by assigning error on the judgment by a writ of

error sued out in due time or within three years from the

date of judgment by motion to set aside.

Kelly vs. Strouse, 116 Ga., 87, 43 S. E., 280.

Crew vs. Hutchenson, 115 Ga., 511, 42 S. E., 16.

Goff vs. Natl. Bank of Tifton, 170 Ga., 691, 155 S. E.,

767.

17

Sou. Railway Co. vs. Stephens, 23 Ga. Apps., 200, 98

S. E., 176.

The judgment of the Ordinary refusing the allowance of a

year’s support which was appealed to the Superior Court was

not tried. The judgment affirmed by the Court of Appeals of

Georgia was a judgment on a demurrer to the reinstatement

of a caveat. The decision, 79 Ga., Apps., 240, 53 S. E., 2nd,

244, shows this. :

Justice Hugo L. Black extended the time for filing petition

for writ of certiorari to and including April 21st, 1954.

Petitioner did not comprehend that the Supreme Court of

Georgia discriminated against her. But assumed that the

Supreme Court of Georgia had fairly overlooked certain

facts, issues and law, as alleged in her motion for a rehear-

ing. (R. 145.)

The writ should be granted and the decision of the Su-

preme Court of Georgia should be reversed.

Respectfully submitted,

eae

Jas: L. Moore,

Will G. Moore, .

Counsel for Petitioner

432 Peachtree Arcade Bldg.,

Atlanta, Ga.

INDEX

SUBJECT INDEX

Statement of Facts.

Argument of Law and Citation of Authorities Sioa

TABLE OF CASES CITED

Spies vs. Illinois, 123 U.S. 131, 8 S. Ct. 22,

31 L. Ed. 80...

Eilenbecker vs. District Court of Plymouth County,

Iowa, 134 U.S. 31, 10S. Ct. 424, 38 L. Ed. 801

Caldwell vs. Texas, Tex. 1891, 137 U. S. 697,

11 S. Ct. 224, 34 L. Ed. 816.. lock

Duncan vs. Missouri, Mo. 1894, 152 U. Ss. 382,

14S. Ct. 570, 38 L. Ed. 485. et

Bolin vs. Nebraska, 176 U. S. 83, 20 S. Ct. 987,

44 L. Ed. 382__

Anderson National Bank 1 vs. Luckett, ky. 1944,

321 U. S. 233, 64 S. Ct. 599, 88 L. Ed. 692,

151 A. L. R. 824... ims

Paxton vs. Berrien County, et al, 17 Ga. 3891

King vs. State, 173 Ga. 432, 163 S. E. 168, 171.

Bowman vs. Bowman, 205 Ga. 798, 55S. E. 2d 298.

Bowman vs. Bowman, 206 Ga. 262, 56 S. E. 2d 497.

Bowman vs. Bowman, 207 Ga. 226, 60S. E. 2d 455.

Bowman vs. Bowman, 209 Ga. 200,71S.E.2d84 __.

Bowman vs. Bowman, Ga. ,78S.E.2d 801

Bowman vs. Bowman, 79 Ga. App. 240,

53S. E. 2d 244 cliched

STATUTES CITED

Constitution of the U. S., 5th Amendment __

Constitution of the U. S., 14th Amendment

1933 Code of Georgia, Section 6-501...

Section 113-901 __

Section 113-907.

Section 113- 1002. pb insinicnilake

IN THE

Supreme Court of the United States

No. 701

DORA LEE BOWMAN, Administratrix of the Estate

of Fred E. Bowman and Administratrix de Bonis Non

of the Estate of Frank K. Bowman

Petitioner

vs.

JOANNE W. BOWMAN

Respondent

Brief in Response to Petition for Writ of Certiorari

to the Supreme Court of the State of Georgia

STATEMENT OF FACTS

The action upon which the instant petition for writ

of certiorari is based was a bill in equity brought by

Joanne W. Bowman, respondent herein, against Fred E.

Bowman, deceased, in the superior court of Fulton

County, Georgia, for cancellation of a quit claim deed

alleged to have been executed by Frank K. Bowman in

favor of Fred E. Bowman on May 4, 1948, just prior to

the death of Frank K. Bowman which occurred on May

]

2

28, 1948, which deed was filed for record in the office

of the clerk of the superior court of Fulton County,

Georgia, on June 8, 1948, after the death of said Frank

K. Bowman. The petition also sought other remedies

incident to the main action by way of receivership, ac-

counting, and so forth, none of which was insisted upon.

Respondent is the widow of Frank K. Bowman, the

alleged grantor in said deed.

The action as amended was brought in three counts,

the first count being based on forgery, the second on

mental incapacity of the grantor to execute a deed and

the third on undue influence.

Each count of the action alleged that respondent had

been awarded the equity of Frank K. Bowman, her de-

ceased husband, as a year’s support, which is a statutory

award under the laws of Georgia designed to provide for

the widow and minor children, where such exist, for a

year after the death of the husband and father.

Each count set forth allegations upon which cancella-

tion of the said deed was therein sought. (R. Pleadings)

To the said action petitioner in certiorari filed an

answer and general and special demurrers. The general

demurrer was heard and resulted in a judgment overrul-

ing the same, to which judgment petitioner in certiorari

excepted. Her bill of exceptions was taken to the Su-

preme Court of Georgia where the judgment of the

lower court was affirmed (Bowman vs. Bowman, 207 Ga.

226, 60 SE 2d 455). Her special demurrers were after-

wards heard and overruled.

Petitioner in certiorari also filed separately a motion

to dismiss and a plea of res judicata, which motion and

3

plea were overruled. Petitioner in certiorari took this

decision also to the Supreme Court of Georgia, where

the judgment of the lower court was affirmed (Bowman

vs. Bowman, 209 Ga. 200, 71 SE 2d 84).

Before trial of the action here involved, Fred E. Bow-

man died and his widow, Dora Lee Bowman, as admin-

istratrix of the estate of Fred E. Bowman, and as adminis-

tratrix de bonis non of the estate of Frank K. Bowman,

was substituted as defendant in his stead.

Upon trial of the action here involved, upon its merits,

before the Honorable Claude E. Shaw, a judge of the

superior court of Fulton County, Georgia, and a jury,

commencing on March 2nd, 1953, a verdict was rendered

for respondent, whereupon the court entered a Judg-

ment and decree in her favor. (R. Decree)

Petitioner in certiorari thereupon filed a motion for

new trial, which was overruled, whereupon the case was

taken by bill of exceptions to the Supreme Court of

Georgia, which court affirmed the lower court and later

denied the motion for rehearing of petitioner in certio-

rari, and refused to consider her petition for reconsider-

ation.

As stated by Justice Wyatt of the Supreme Court of

Georgia, in his opinion in this case, this matter has had

a long and involved history in the appellate courts of

this state. The decision here sought to be reviewed marks

the sixth appearance in the appellate courts of Georgia

of various phases of this litigation over the property

here involved, all of them being preparatory to or look-

ing toward cancellation of the deed here involved: Bow-

man vs. Bowman, 205 Ga. 798, 55 SE 2d 298 (dealing

with a will of November 1, 1946) , Bowman vs. Bowman,

4

79 Ga. App. 240, 53 SE 2d 244 (dealing with the year's

support action) , Bowman vs. Bowman, 206 Ga. 262, 56

SE 2d 497 (dealing with the first deed case, which fail-

ed), Bowman vs. Bowman, 207 Ga. 226, 60 SE 2d 242,

(dealing with the general demurrer to the instant case) ,

Bowman vs. Bowman, 209 Ga. 200, 71 SE 2d 84 (deal-

ing with the plea of res judicata in the instant case) ,

and Bowman vs. Bowman, .......... Ga , 78

SE 2d 801 (the instant case here complained of) .

ARGUMENT OF LAW

AND

CITATION OF AUTHORITIES

It is the contention of petitioner in certiorari that

under Code Sections 113-901 and 113-907 of the 1933

Code of Georgia, an heir at law may sue in his own

name to recover realty from third persons, only where

there has been no administrator appointed, or if there

has been an administrator appointed, he consents there-

to, and that since your respondent failed to prove that

her deceased husband had died intestate; that there had

been no administrator appointed, or that an administra-

tor, if appointed, had failed to consent to her action, the

judgment of the Supreme Court of Georgia in affirming

the judgment of the trial court decreeing a cancellation

of the quit claim deed here involved constituted a dis-

crimination against petitioner in certiorari in that it

deprived petitioner of property without due process of the

law and the equal protection of the law, contrary to the

provisions of the 5th and 14th Amendments of the Con-

stitution of the United States.

This reasoning of petitioner in certiorari is fallacious,

5

first of all, because, as was pointed out by the Supreme

Court of Georgia, respondent was not proceeding in the

said action as an heir at law of her deceased husband, but

as the beneficiary of a statutory award of a year’s support

in such interest as her deceased husband owned in the

said property, under the terms of Section 113-1002 of the

1933 Code of Georgia, which section is as follows:

“Among the necessary nses of administration,

and to be preferred racy all other debts, except

as otherwise specially provided, is the provision for

the support of the family, to be ascertained as fol-

lows: Upon the death of any person testate or intes-

tate, leaving an estate solvent or insolvent, and

leaving a widow, or a widow and minor child or

children, or minor child or children only, it shall

be the duty of the ordinary, on the a plication of

the widow, or the guardian of the child or children,

or any other person in their behalf, on notice to the

representative of the estate ( if there is one, and if

none, without notice), to appoint five discreet ap-

praisers; and it shall be the duty of such appraisers,

or a majority of them, to set a and assign to such

widow and children, or children only, either in

property or money, a sufficiency from the estate for

their support and maintenance for the space of 12

months from the date of administration, in case there

is administration on the estate, to be estimated

according to the circumstances and standing of the

family previous to the death of the testator or intes-

tate, and keeping in view also the solvency of the

estate. If there is a widow, the appraisers shall also

set apart, for the use of herself and children, a suf.

ficient amount of the household furniture. The

amount set apart for the family shall in no event be

less than the sum of $100; and if it shall appear upon

a just appraisement of the estate that it does not

exceed in value the sum of $500, it shall be the duty

of the appraisers to set apart the whole of said estate

for the support and maintenance of such widow

and child or children, or, if no surviving widow, to the

lawful guardian of the child or children, for their

benefit: Provided, that all taxes and liens for taxes

accrued against property, an equity of redemption

in which is embraced in a year’s support duly set

apart, shall be thereby divested, the same as if tl ¢

entire title were included in such year’s support.”

The award was made in the present case in the Court

of Ordinary of Fulton County, Georgia. As will be seen

from the reported decision in the case of Bowman vs.

Bowman, 79 Ga. App. 240, 53 SE 2d 244, Fred E. Bow-

man filed a caveat, or objections, to the year’s support

award. Later, he withdrew such objections and then

sought to reinstate them. Respondent filed a general de-

murrer to his motion to reinstate on the ground that such

caveat came too late. The judge of the Court of Ordinary

overruled respondent's demurrer and disallowed a year’s

support. Respondent appealed these orders to the supe-

rior court of Fulton County, Georgia. Under the pro-

visions of Code Section 6-501 of the 1938 Code of Geor-

gia, an appeal from a Court of Ordinary to a Superior

Court in the State of Georgia is a de novo investigation

and brings up the whole record from the court below.

This code section is as follows:

“An appeal to the superior court is a de novo in-

vestigation. It brings up the whole record from the

court below, and all competent evidence shall be

admissible on the trial thereof, whether adduced on

a former trial or not; either party is entitled to be

heard on the whole merits of the case.”

In an appeal from the judgment of the Court of Ordi-

nary, the Superior Court may hear and sustain a general

demurrer previously overruled in the lower court, there-

7

by terminating the case. Paxton vs. Berrien County, et

al., 117 Ga. 891.

Upon a hearing in the superior court of Fulton

County, the general demurrer of respondent to the mo-

tion for reinstatement of the caveat of Fred F Bowman,

petitioner's intestate, was sustained and the caveat dis-

missed.

Upon appeal of this decision vo ourt of Appeals

of the State of Georgia, the super rt was affirmed

and an order entered directing the of the Court

of Ordinary to admit to record the return of the ap-

praisers awarding your respondent a year's support in

the interest of her deceased husband in the property

here involved.

Upon the trial, respondent made no issue of any rights

she may have claimed as an heir at law of her deceased

husband, but pressed her claim to the property under

the year’s support award as above set out, which award

was properly set forth in each count of her bill and was

properly proved.

Petitioner complains that there is a conflict between

the decision here sought to be reviewed and a prior de-

cision of the same court, and that this constitutes a dis-

crimination against petitioner in certiorari so as to de-

prive her of property without due process of law and the

equal protection of the law, contrary to the provisions of

the 5th and 14th amendments to the Constitution of the

United States. ,

In response to this complaint, respondent would like

to point out, first of all, that no constitutional question

was raised in the court below and that this court has

many times held that it will not review a case where

questions of constitutionality are sought to be raised for

the first time in this court.

Spies vs. Illinois, 123 U.S. 181, 8 S. Ct. 22, 31 L.

Ed. 80

Bolin vs. Nebraska, 20 S. Ct. 287, 176 U. S. 83,

44 L. Ed. 382

As to petitioner’s contention of discrimination under

the 5th amendment to the Constitution, even assuming

that such claim had been made in the court below, so as

to be reviewable by this court, it would not hold water

for the reason that the first ten amendments to the Con-

stitution have been construed to refer exclusively to

powers exercised by the United States government and

not those exercised by the States.

King vs. State, 173 Ga. 432, 168 SE 168, 171

Eilenbecker vs. District Court of Plymouth Coun-

ty, Iowa, 134 U.S. 31, 10 S. Ct. 424, 33 L. Ed. 801

Spies vs. Illinois, 123 U.S. 131, 8 S. Ct. 22, 31 L.

Ed. 80

As to petitioner’s contention of discrimination under

the 14th amendment, the record itself will refute this.

The record reveals the varied course of this case from

trial court to appellate courts, and back to trial court,

not once, but many times.

“Due Process of Law”, as contemplated by the 14th

amendment, has been construed to mean the administra-

tion of general laws of a state according to established

rules, not violative of the fundamental principles of pri-

vate rights, by a competent tribunal having jurisdiction

of the subject matter and proceeding upon notice and

hearing.

King vs. State, 173 Ga. 482, 163 SE 168, 171

Caldwell vs. Texas, Texas 1891, 11 S. Ct. 224, 137

U. S. 697, 34 L. Ed. 816

Duncan vs. Missouri, Mo. 1894, 14 S. Ct. 570,

152, U. S. 382, 88 L. Ed. 485

Anderson Natl. Bank vs. Luckett, Ky. 1944, 64

S. Ct. 599, $21 U. S. 238, 88 L. Ed. 692, 151 ALR

824

Under this construction, petitioner has beyond doubt

been accorded every Opportunity, and has manifestly

taken advantage of such Opportunity, to avail herself of

the rights and remedies open to her in the proper tribu-

nals of Georgia. Such complaint is, on its face, ridiculous

and beyond the belief of this court.

Wherefore, respond prays:

(a) That the said petition for writ of certiorari be

denied;

(b) That this court refuse to review the said judg-

ment of the State court.

Respectfully submitted

PooLe, Pearce & HALL

1202 Candler Building

Atlanta, Georgia.