
    *Alexander J. S. Jackson, guardian, plaintiff in error, vs. Samuel C. Hitchcock, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Guardian and Ward — Record of Guardianship — Jurisdiction of Ordinary — Accounting.—Samuel C. Hitchcock having been appointed guardian of Irby Hudson, by the Ordinary of Sumter county, moved his guardianship in terms of the law to Hancock county. On the arrival of Hudson at the age of fourteen years, Hitchcock was, by petition, removed on the ground that Hudson was now fourteen years old, and had chosen another guardian. This was done in the county of Hancock. Soon after, A. J. S. Jackson was appointed guardian of Hudson, whose residence was then in Greene county. Jackson, the new guardian, cited Hitchcock, who resided in Fulton county, before the Ordinary of Greene county, to account. Hitchcock acknowledged service of the citation, but did not appear, and on an ex parte hearing the Ordinary gave a judgment against Hitchcock. An execution was issued and levied, and Hitchcock filed an affidavit of illegality on the ground that the Ordinary of Greene county had no jurisdiction to call him to account:
    Held, That as the Ordinary of Greene county did not have the record of Hitchcock’s guardianship, and as Hitchcock had never been appointed by him or been in any 'way subject to his jurisdiction, said Ordinary had no power to call him to account or to give a judgment against him.
    2. Same — Same—Same—Waiver of Jurisdiction — Acknowledgment of Service. — The acknowledgment of service of the citation was no waiver of the jurisdiction, and as Hitchcock did not appear or plead to the citation, the judgment was void, and the remedy by affidavit of illegality may be used to make the question of jurisdiction.
    Guardian and ward. Jurisdiction. Illegality. Waiver. Service. Before Judge Robinson. Greene Superior Court. September Term, 1872.
    The petition of Samuel C. Hitchcock, former guardian of the person and property of Irby Hudson,. „a minor, to the Superior. Court of Greene county, for the writ of certiorari, made the following case:
    At the April term, 1872, of the Court of Ordinary of said county, there came on to be tried an affidavit of illegality filed by petitioner to an execution founded on a judgment rendered against him by said Court, at the December term, 1871, on a proceeding commenced by Alexander J. S. Jackson, of said county, as guardian of said minor, for an account and settlement.
    *The grounds of illegality were as follows:
    1st. Because the Court rendering the judgment upon which said execution was based had no jurisdiction of the proceeding, for the reason that petitioner never was a resident of the county of Greene, but, on the contrary, during the entire period for which he was the guardian of the said Irby Hudson, his residence was either in the county of Hancock or the county of Fulton.
    
      2d. Because the Constitution of the State of Georgia requires that all suits shall be brought in the county of the residence of the defendant, and a judgment .rendered in any other county is null and voi.d.
    The proceeding instituted as aforesaid against petitioner was purely ex parte. He acknowledged service and waived publication of notice, but refused to waive the jurisdiction of the Court. Petitioner did not appear and made .no defense to said proceeding. He was originally appointed guardian of said minor in the county of Sumter, but subsequently the guardianship was regularly removed to the county of Hancock. When the said minor reached the age of fourteen years, he selected said Jackson as his guardian, and petitioner’s letters were accordingly revoked, he making his last return to the Court of Ordinary of Hancock county. At the August term, 1871, of the Court of Ordinary of Greene county, in accordance with the selection of said minor, Jackson was duly appointed guardian. All of these facts were made to appear upon the trial of the aforesaid illegality, yet the Court of Ordinary of Greene county overruled the same, and ordered the execution to proceed. Prayer, that the writ of certiorari may issue.
    The petition was sanctioned and the writ issued.
    The Superior Court, upon the trial, sustained the certiorari, holding that all the proceedings in the county of Greene were null and void as against petitioner, the Court of Ordinary having acted without jurisdiction. Jackson, guardian, excepted to this ‘ruling, and now assigns the same as error.
    *Edward L. Lewis; John C. Reed, for plaintiff in error.
    Benjamin E. Abbott, for defendant.
    
      
      Waiver of Jurisdiction — Acknowledgment of Service. — If at the hearing the record shows the regular return of sales by the proper officer, such return will be conclusive, until traversed according to law, unless it be made to appear that the court with actual service would have had no jurisdiction over the defendant or of the subject matter of the suit. Such defect with return will be open to attack at all times and places. Maund v. Keating, 55 Ga. 398, approving the principal case.
      Jurisdiction. — The case of Hartsfield v. Morris, 89 Ga. 254, 15 S. E. Rep. 363 (“where all the defendants sued in a justice’s court were residents of another county, and therefore nonresidents of the district in which the suit was located, the court was without jurisdiction and personal service upon them effected by the constable of the district, and their failure to appear, would not give it jurisdiction. The judgment rendered against them was void, and can be treated by them as a nullity. But as the subject matter was such as the court could deal with if the defendants had been residents of the district, and as the defendants were personally served, affidavit of illegality is not available in resistance to a levy of the execution upon their property”), is distinguished from principal case in which there was no jurisdiction over the subject matter.
    
   McCay, Judge.

Whatever may be the power of an Ordinary under our Constitution and laws over a guardian appointed by him and bound by the tenure of his letters to report to and obey the legal orders of the grantor of his letters, we are very clear that under the facts of this case the Ordinary of Greene county had no such power over Hitchcock. Hitchcock, after the removal of his guardianship to Hancock, became an officer of, and amenable to the Ordinary of Hancock. Whilst he was guardian he was bound to make his returns there — there was his bond — there the record x>f hi§ letters, his returns and a full record of his acts. The power of the Ordinary to call him to account turns upon the fact that he is a quasi officer of the Court, and that by coming into that Court of his own motion he had consented to its summary jurisdiction. None of this reasoning applies to the Ordinary of Greene. Pie does not ever officially know that Hitchcock ever was guardian. He does not have any bond from him, he has no record of his letters, returns, or of any of his acts. The idea of an account is to go over the records — the originals— over the actual signature of the guardian, arid state the account. To do this the Ordinary must have the records, or if the guardianship has been removed, the copies adopted as originals at the removal. In this case the Ordinary of Greene called on Hitchcock to account when there was not among his records a particle of evidence that Hitchcock had ever been guardian at all, much less had he ever been an officer or appointee of the Ordinary of Greene county, or been in any respect subject to his orders. It was, however, contended on argument that on the discharge of Hitchcock by the Ordinary of Hancock, and the removal of the ward to Greene, jurisdiction over the whole guardianship, *past/ present and future, vested in the Ordinary of Greene. There is no positive law so declaring, and if this be the law, it is only because it arises from the nature of the thing, or that such a jurisdiction is necessary in order to give •effect to the right to appoint a new guardian. Is this so ? May not the Greene county Ordinary exercise every function necessary to appoint and superintend the conduct of new guardians without the power claimed for him? True, he cannot put the new guardian in possession of the effects. But he- cannot do that in any case. Even if Hitchcock were, his appointee, he could not proceed then against him as a part of his jurisdiction over the new guardian, or over the guardianship, but by notice of his having appointed Hitchcock. Can our law be that the Ordinary having present jurisdiction of a guardianship may call all previous guardians to account whenever they may have been appointed? If Jackspn should move his guardianship to Rabun, and thence to Charlton, does jurisdiction over Hitchcock follow to the Ordinary of Charlton? It seems to us that this is absurd As we have said, the only defense of the constitutionality of the law itself turns upon the fact that Hitchcock has voluntarily consented to become an appointee — a trustee — a quasi receiver of the Ordinary of Hancock county — has given him a bond, a recognizance, an obligation, upon his records, that he will account, and having so done, he is amenable to. such process as belong to that officer to compel the performance of that record undertaking. Hitchcock has not done this to the. Ordinary of Greene county, and that Ordinary has nothing upon Ms records to justify his proceeding in this way against the appointee of the Ordinary of Hancock. We do not pass positively upon the question whether the sections of the Code, authorizing the Ordinaries to hear, determine and issue execution upon questions -of account, are in accord with the Constitution. We decide that the Ordinary of Greene had no jurisdiction. Whether some •other Ordinary had, is not properly before us.

The mere acknowledgment of service and waiver of process *admits nothing, but puts the party in precisely the same situation as though process were annexed and service effected by the proper officer: Revised Code, 3261. One is not bound to appear, even though served before a Court having no jurisdiction. The judgment is void, and may be treated as' such whenever and wherever it is sought to.be enforced: Revised Code, 3536. By appearing and pleading to the merits, jurisdiction is admitted: Revised Code, 3409. Here was no-appearance and plea, and the judgment is simply null, with nothing, not even appearance, to justify it. It is therefore illegal, the execution is illegal, the ievy illegal. This Court has on several occasions held that in such cases illegality will lie. And this, too, is recognized by the Code: Revised Code, section 3621. A man cannot be said to have had his day in Court if the Court have no jurisdiction of the matter, he having not appeared.

Judgment reversed.  