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Equitable petition. Before Judge Anderson. Columbia Superior Court. September 15, 1953.
CANDLER, Justice.
For want of an essential and indispensable party, this equitable proceeding was properly dismissed on demurrer.
William L. Flinn, alias William L. Flynn, died intestate on March 27, 1951, being at the time of his death a resident of Columbia County, Georgia. Harriette S. Flynn, alleging herself to be his widow, applied to the Court of Ordinary of Columbia County for a year's support from his estate, both for herself and for Harriette Faye Flynn, their minor child. For such support, the appraisers set apart certain realty and personalty, and their return was made the judgment of the Court of Ordinary on September 4, 1951. An equitable action containing two counts was instituted by Effie Stone Flinn against Harriette S. Flynn for the purpose of vacating and setting aside the year's support judgment. Count one alleges that the judgment is void, and that a court of equity has jurisdiction to vacate and set it aside because it was procured by fraud, unmixed with negligence or fault of the petitioner. Count two alleges that the judgment is void, and that a court of equity has jurisdiction to vacate and set it aside because it was procured by mistake, unmixed with negligence or fault of the petitioner. Each count of the petition also alleges: The plaintiff resides in Laurens County, South Carolina. She and William L. Flinn were married on November 26, 1905. He deserted her and their three minor children during 1933. He took up residence in Richmond County, Georgia, and began spelling his name "Flynn". Their marriage was never dissolved by divorce or otherwise, and upon his death she became his lawful widow. Their three children are now in life and sui juris. Her husband moved to Columbia County in 1946. She had no knowledge of his location and death and no notice of the defendant's application for a year's support from his estate until after the judgment therefor was granted on September 4, 1951. Since the defendant is not the widow of the deceased William L. Flinn, she is not entitled to a year's support from his estate. Each count of the petition prays for process, and that the year's support judgment be vacated and set aside. The petition was dismissed on demurrer, and the exception is to that judgment.
(After stating the foregoing facts.) 1. It is a well-settled rule that all persons who are directly or consequentially interested in the result of litigation should be made parties, either plaintiff or defendant, to proceedings for equitable relief. Code 37-1004; Wyche v. Green, 32 Ga. 341; Blaisdell v. Bohr, 68 Ga. 56; Henderson v. Napier, 107 Ga. 342 (33 S. E. 433); Bond v. Hunt, 135 Ga. 733 (1) (70 S. E. 572); First National Bank of Sparta v. Wiley, 150 Ga. 759 (2) (105 S. E. 308). A petition for equitable relief which fails to name essential and indispensable parties, namely, those who will be adversely or prejudicially affected by the judgment prayed for, is defective and subject to demurrer. Parnell v. Wooten, 202 Ga. 443 (43 S. E. 2d 673), and citations.
2. In the present case the plaintiff seeks to vacate and set aside a year's support judgment, but Harriette Faye Flynn, a minor, is not a party to the proceeding. By the judgment sought to be vacated and set aside, she acquired an interest in the property set apart as a years support ( Walden v. Walden, 191 Ga. 182, 12 S. E. 2d 345; Mixon v. Sumner, 205 Ga. 579, 54 S. E. 2d 411; Ennis v. Ennis, 207 Ga. 665, 63 S. E. 2d 887); and this is true even if the marriage between her mother and her father was in fact a bigamous one, it not appearing that such marriage had ever been declared void by a court of competent jurisdiction. Code 53-104; Griffin v. Booth, 176 Ga. 1 (167 S. E. 294); Campbell v. Allen, 208 Ga. 274 (66 S. E. 2d 226). Having acquired vested property rights in consequence of the year's support judgment, she was an essential and indispensable party to an equitable proceeding to vacate and set it aside. "In a proceeding in equity, all persons having a legal or equitable interest in the subject matter of the suit must be made parties." Wyche v. Green, supra. Full and final relief could not be administered by the court unless she was a party, and it was therefore necessary that she be a party to the action. For this controlling reason the judgment complained of is not erroneous. See Brown v. Brown, 97 Ga. 531 (25 S. E. 353); Miller v. Butler, 137 Ga. 90, 93 (72 S. E. 913); Isom v. Nutting, 153 Ga. 682 (113 S. E. 197).
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.
Maurice Steinberg, contra.
Congdon, Harper & Leonard, for plaintiff in error.
Saturday May 23 03:34 EDT

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