162 Ga. 143 | Ga. | 1926
The Civil Code (1910), § 3054, provides: “Suit may be instituted against the guardian and his sureties on his bond in the same action at the instance of his ward, or a new guardian, or any other person interested, without first suing the guardian; and if the guardian is beyond the jurisdiction of the court, or places himself in the position of a debtor liable to attachment, or is dead, and his estate unrepresented, suit may be commenced against the sureties alone; provided, that the fi. fa. issued upon a judgment obtained against the guardian and his sureties shall not be levied upon the property of the sureties until a return of nulla bona as to the guardian, unless the property of the sureties is being removed from the county. If the failure to sue the guardian arose from his voluntary act, the judgment against the
In Bailey v. McAlpin, 122 Ga. 616 (50 S. E. 388), Judge Cobb, speaking for the court, considered and reviewed all of the cases on this subject previously decided by this court, and also the acts of the legislature above mentioned, and reached the conclusion that the effect of the section of the Code of 1863, § 2470, now § 3974, which declares that cno prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against-the sureties on the bond,’ was to permit a suit to be brought on the bond in the first instance against the administrator and his sureties. The decision of Judge Nisbet held in effect, that, before a surety on an administrator’s bond could be sued, there must be a preliminary suit against the administrator fixing the liability of such administrator. That decision, and others like it, were rendered prior to the Code of 1863. In that Code the acts of 1820 and 1851-2, with reference to suits against sureties on administrators’ and guardians’ bonds, were separated and put into two sections of the Code, and certain words were added which authorized suit against the guardian and his sureties on his bond in the same action at the instance of his ward, “or a new guardian, or any other person interested, without first suing the guardian.” If, therefore, the reasoning of
We are of the opinion that the first two questions propounded by the Court of Appeals should be answered in the negative. The