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ALFORD et al. v. SMITH et al.
Construction of will. Dooly Superior Court. Before Judge McMurray.
NICHOLS, Justice.
In the absence of fraud or mistake a consent decree is valid and binding on the parties thereto where the court rendering such decree has jurisdiction of the parties and subject matter.
After the will of Hude S. Smith, Sr. was probated three of his five children filed a petition in the superior court seeking to have their father's will construed and for other relief including "that the proceedings be kept open for any and all other orders which may be necessary or proper in connection with the further administration of the estate." The will provided that one-half of the estate would go to the testator's wife in fee simple and that the remaining one-half of the estate would go to the five children but the income from the children's one-half would go to the wife for life. A consent decree in such action was entered in August, 1964, which included in its provisions the following: "In the event of the failure of said executrix to obtain the written approval of each of the five children of Hude S. Smith, hereinbefore named, to the division of the property of said estate as contemplated in paragraph 4 hereof, said executrix may apply to the court for an order to sell and dispose of all of the property of the said estate at a judicial sale to be held not less than three months from the date of the order granting said application, and a copy of said application shall be served by registered United States mail upon each of the five children of Hude S. Smith, Sr., hereinbefore named, unless such service be waived or acknowledged in writing; thereupon, this court shall order a judicial sale of said property, to be held on a first Tuesday not less than three months from the date of said order, and to be advertised once a week for the four weeks immediately preceding the week of said sale as in the case of other judicial sales in said county. No such sale shall be valid until confirmed by an order of this court, but the property may be withdrawn from sale at any time by written consent of all of said children, or their legal representatives, and said executrix." Thereafter, in December, 1967, the testator's wife (who was still serving as executrix) filed a petition seeking permission to sell the remaining real estate in the estate under the provisions of the consent decree quoted above, and the three children who filed the original petition filed their answer, objections and motions to strike thereto. The petition was amended and the objections renewed. On August 12, 1968, the trial court, after hearing argument struck the answer and motions of the three children and ordered the sale of the real estate in accordance with the provisions of the consent decree. The three objecting children appealed from this judgment for various reasons and enumerate the same as error.
"A judgment rendered with consent of counsel is binding on the client unless such consent was in violation of express directions given by the client to the attorney and known to the adverse party or his attorney, or unless there was otherwise fraud or collusion on the part of counsel so consenting, participated in by the adverse party or his attorney. Reece v. McCormack, 188 Ga. 665 (4 SE2d 575); Howell v. Howell, 188 Ga. 803 (4 SE2d 835); and cases cited in those decisions." Petty v. Complete Auto Transit, 215 Ga. 6(3 (1) (108 SE2d 697). The appellants' response to the request for an order authorizing the sale of the realty makes no contention that the consent judgment did not contain exactly what was agreed upon by the parties, but relies upon alleged "affirmations, declarations and statements" made prior to the time the consent decree was made and approved but not included therein. The appellants are bound by the consent decree and it cannot be said that the trial court was without jurisdiction of the persons or subject matter of the original petition so as to make such judgment void. Cf. Gray v. Trust Co. of Ga., 211 Ga. 332 (85 SE2d 721). The trial court did not err in striking the appellants' motions and objections and ordering the sale of the real property in accordance with the terms of the consent decree. See also Grayson v. Grayson, 217 Ga. 133 (121 SE2d 34), as to consent decrees.
Judgment affirmed. All the Justices concur.
Roy N. Cowart, William T. Roberts, George P. Wright, for appellees.
W. F. Blanks, Roy B. Friedin, for appellants.
Friday May 22 18:14 EDT

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