33 Ga. App. 269 | Ga. Ct. App. | 1924
This was an action by M. L. Pinson against E. L. Jones, principal, and Henry Bishop and Jim Bishop, as sureties, upon the bond of Jones as administrator of the estate of V. W. Bishop. It was commenced in a justice’s court of Gordon county on November 7, 1923, but by consent was appealed to the superior court. Attached to the summons was a complaint in which the plaintiff alleged that he had procured “a judgment and execution against E. L. Jones as administrator,” “which judgment and execution is against the property of the said Y, W. Bishop, deceased, in the hands of the said E. L. Jones, as administrator,” and that upon the fi. fa. an entry of nulla bona had been made by the sheriff of Gordon county. Annexed to the complaint was a copy of the ff. fa., in form as follows:
“State of Georgia, Gordon county.
“M. L. Pinson, plaintiff, vs. E. L. Jones, as adm’r of estate of Y. W. Bishop, deceased, defendant.
“To any lawful constable of said county, greeting: You are hereby commanded to levy on a sufficiency of the property of the defendant above named and of the property of Y- W. Bishop, deceased, in hands of E. L. Jones, as adm’r, to make the sum of $76.94 principal, $8.25 interest to date of judgment at seven per cent, per annum, and all future interest at the same rate,
“G. E. Wlielchel, J. P., 980th district, G. M. (Seal.)”
The administrator Jones was a resident of Gordon county, and the sureties were residents of Murray county. These facts appeared upon the face of the petition.
The defendant sureties pleaded to the merit's, with a reservation of the right to move to dismiss the suit, for want of jurisdiction. Upon the call of the case for trial they made an oral motion to dismiss, upon the ground that it appeared by the petition or summons that the plaintiff had already recovered against the administrator a judgment de bonis propriis and could not proceed for a second personal judgment against him upon the bond, and, inasmuch, therefore, as a cause of action was not set forth against the administrator, the court had no jurisdiction over the sureties who resided in another county. The motion was overruled, and this judgment is assigned as error.
The plaintiffs in error rely upon the decision of the Supreme Court in Ross v. Battle, 117 Ga. 877 (45 S. E. 252), in which it was held that where heirs at law of an estate have recovered against administrators judgments de bonis testatoris and de bonis propriis, they can not for the same cause of action recover another judgment de bonis propriis against the administrators upon their bond, and that where suit on such bond, against the administrators and the sureties, is commenced in the court of the county of the residence of one of the administrators, against whom no recovery can be had, and all the sureties reside in other counties, the court has no jurisdiction of the sureties, and the action should be dismissed on demurrer. If the counsel are right in their contention that the execution attached to the summons discloses that a prior judgment had been obtained against the administrator de bonis propriis, the court undoubtedly committed error in overruling the motion to dismiss. Ruis v. Lothridge, 149 Ga. 474 (2) (100 S. E. 365);
It would seem that if the judgment had been both de bonis testa,toris and de bonis propriis, the execution should have commanded the levy to be made, first, upon the property of the deceased, “if to be found, and if not to be found, then to be levied of the personal goods and chattels, lands and tenements of the defendant.” Civil Code (1910), § 4088.
In view of the language of the execution, it does not come within the rulings of any of the following cases: Forrester v. Tift, 84 Ga. 595 (10 S. E. 1015); Freeman v. Binswanger, 57 Ga. 159 (1); Lemon v. Thaxton, 59 Ga. 706; Beall v. Hutcheson, 131 Ga. 66 (61 S. E. 1125); Stephens v. City of Atlanta, 119 Ga. 666 (1). (46 S. E. 872); Wright v. Scott, 145 Ga. 514 (89 S. E. 426).
We hold, therefore, that the suit did not disclose a prior persona] judgment in favor of the plaintiff against the administrator. A suit may be brought on the bond against an administrator and his sureties without first obtaining a judgment against either in his individual or representative capacity. Bailey v. McAlpin, 122 Ga. 616 (6) (50 S. E. 388); Civil Code (1910), § 3974. Joint obligors may be sued in the county of the residence of either. Civil Code (1910), § 6541. The decision of the Supreme Court in Ross v. Battle is inapplicable. The motion to dismiss was properly overruled.
The defendant sureties filed a plea in abatement, upon tlic
“No. 29, Feb. Term, 1923. Appeal.
“M. L. Pinson vs. K. L. Jones, adni’r of V. W. Bishop et al.
“Withdrawn August 29th, 1923.”
See Butler v. Moseley, 14 Ga. App. 288 (2) (80 S. E. 789); Doody v. Jeffcoat, 127 Ga. 301 (1) (56 S. E. 421); Moore v. Bower, 6 Ga. App. 450 (4) (65 S. E. 328); Holmes v. Huguley, 136 Ga. 758 (1) (72 S. E. 38). Even if such entry could be held to show that the parties were identical, it discloses nothing as to the identity of the causes of action.
Error is also assigned upon the direction of a verdict in favor of the plaintiff on the.main issue. “Upon the rendition of a judgment in favor of a party against an executor or administrator upon any liability of the deceased, and a return of nulla bona by the sheriff or other officer authorized to make the same, the said party majr at once proceed to sue upon the bond of the executor or administrator, and may recover judgment against the principal and his sureties in the "same action.” Civil Code (1910), § 4081: Sheriffs are authorized to execute justice’s court processes. Civil Code (1910), § 4915. The plaintiff introduced the fi. fa. with the entry of nulla bona, as shown in the first division of this opinion. The fi. fa. having been issued in the county of the residence of the administrator, and the entry having been made by the sheriff of this county, it was not necessary that the plaintiff should show that the fi. fa. had been forwarded to another county and that a like entry
These documents would have made out a conclusive ease of devastavit against the administrator, and while as to the sureties they would have established only a prima facie case, there was absolutely no evidence tending to rebut the same, and the court, therefore, did not err in directing a verdict in favor of the plaintiff for the amount sued" for. See Gibson v. Robinson, 90 Ga. 756 (2) (4). (16 S. E. 969, 35 Am. St. Rep. 250); Johnson v. Huggins, 7 Ga. App. 553 (67 S. E. 217); Walker v. Shannon, 21 Ga. App. 39 (1) (93 S. E. 498); Groves v. Williams, 68 Ga. 598 (3); Sutton v. Flanders, 146 Ga. 290 (1), 293 (91 S. E. 50). Moreover, the evidence not only failed to rebut the inference of a devastavit to be drawn from the fi. fa. and the entry of nulla bona, but materially strengthened the same by showing (instead of a deficiency of assets) that the intestate left property subject to the plaintiff’s demand which ought to have been administered by the administrator and applied to its payment. Worthy v. Battle, 125 Ga. 415 (3) (54 S. E. 667).
In one ground of the motion for a 'new trial it is assigned that the court erred in ruling that the fi. fa. with" the entry of nulla bona was conclusive against the sureties, and that in such ruling the court erroneously expressed an opinion as to the sufficiency of the evidence. It is true, as we have already observed, that the fi. fa. and the entry made only a prima facie case of devastavit as against the sureties, but it not appearing that the defendants were prevented by this ruling from the introduction or offering of any evidence, and such prima facie case not having been rebutted, there is no cause for reversal in such expression by the judge of an erroneous opinion as to the law, nor in his final judgment upon the facts, there being no issue for submission to the jirry. Civil Code (1910), § 5926.
Judgment affirmed.