When proceedings have been instituted and judgment of the partition has been rendered according to the regulations prescribed in this part and if any one of the parties in interest is a minor or a mentally ill or intellectually disabled person who has no guardian, or is absent from the state during such proceeding, or has not been notified thereof, such minor or mentally ill or intellectually disabled person may, within 12 months after coming of age, after restoration of mind, or after having a guardian appointed, as the case may be, and such absent or unnotified party may, at any time within 12 months after rendition of the judgment, move the court to set aside the judgment on any of the grounds upon which a party notified and free from disabilities might have resisted the judgment upon the hearing as authorized by Code Section 44-6-165. The issue shall be tried and the subsequent proceedings shall be the same as is provided for in cases of objections filed to the return of the partitioners before judgment. If such motion to set aside the judgment is not made within the time specified in this Code section, such judgment shall be as binding and conclusive upon such minor, mentally ill or intellectually disabled person, or absent or unnotified party as if he or she had been notified, present, or free from disability. In no event shall such subsequent proceedings affect the title of a bona fide purchaser under a sale ordered by the court.
(Laws 1767, Cobb's 1851 Digest, p. 582; Code 1863, § 3907; Code 1868, § 3931; Code 1873, § 4007; Code 1882, § 4007; Civil Code 1895, § 4797; Civil Code 1910, § 5369; Code 1933, § 85-1515; Ga. L. 2015, p. 385, § 4-12/HB 252.)
The 2015 amendment, effective July 1, 2015, substituted "intellectually disabled" for "retarded" three times in this Code section and inserted "or she" in the next to the last sentence.
Editor's notes.- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"
JUDICIAL DECISIONS
Section provides for case of one who is resident, but is temporarily absent from state. Childs v. Hayman, 72 Ga. 791 (1884) (see O.C.G.A. § 44-6-171).
Applicability to cotenant absent from state.
- This statute is not dependent on the absence of service, but the statutory provisions will apply when a party at interest is either absent from the state or has not been notified. Thus, even though a cotenant may be served, yet if the cotenant is absent from the state, the cotenants rights will be presumed so materially affected that a judgment may be set aside at any time within 12 months. Lankford v. Milhollin, 197 Ga. 227, 28 S.E.2d 752 (1944) (see O.C.G.A. § 44-6-171).
Counsel's presence equivalent of party's presence.
- Presence of counsel who has full authority to represent a party, and who litigates the issues then for trial, is the equivalent of the party's presence. Lankford v. Milhollin, 201 Ga. 594, 40 S.E.2d 376 (1946).
Unnotified, absent, or disabled parties have 12 months to move to set aside judgment.
- When proceedings have been instituted and judgment of partition had thereon, and any one of the parties in interest is absent from the state during the proceeding, or has not been notified, such absent or unnotified party may at any time within 12 months move to set aside the judgment, on any ground on which the party might have resisted the same on the hearing, and the issue shall be tried and the subsequent proceedings shall be the same as pointed out in cases of objections filed to the return of the partitioners before judgment. Lankford v. Milhollin, 197 Ga. 227, 28 S.E.2d 752 (1944).
Parties not notified, or absent from the state, or laboring under any disability recognized by law, have 12 months in which to move to set aside the judgment upon any ground which might have been urged by such parties upon the hearing for partition. Barron v. Lovett, 207 Ga. 131, 60 S.E.2d 458 (1950).
Cited in Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); Faison v. Faison, 344 Ga. App. 600, 811 S.E.2d 431 (2018).