Sutton v. Hutchinson

Felton, Justice. In this action by two of the heirs at law of the testatrix of a purported nuncupative will to set aside the judgment of a court of ordinary appointing the defendant as administrator with the alleged nuncupative will annexed, pretermitting the issue of the validity of the alleged nuncupative will otherwise, where there was no genuine issue of material fact and the pleadings and stipulations of fact on file showed that there was no personal service, or waiver or acknowledgement thereof, on the two known, resident plaintiffs, as required by Code Ann. §§ 113-618 and 113-607, the judgment was void at least for lack of jurisdiction over necessary parties (Code § 110-709); therefore, the superior court did not err in its judgment granting the summary judgment in favor of the plaintiffs. Judgment affirmed. All the Justices concur.