111 Ga. 196 | Ga. | 1900
Scott brought suit in a justice’s court against Mrs. Bryson “as administratrix of the estate of Thomas M. Bryson, deceased,” seeking to obtain a judgment against her in her representative capacity. The defendant pleaded that she had no assets of the estate in her hands, and also that all the assets of the estate had been properly applied to the payment of debts of higher dignity than that of the plaintiff. The justice, after hearing evidence, found against these pleas, and entered a judg-' ment for the amount sued for, to be satisfied of the property of the deceased, if any to be found, and, if not to be found, then to be satisfied of the property of Mrs. Bryson individually. "Within four days after the rendition of this judgment Mrs. Bry- . son filed with the justice a paper in which it was stated that she desired “in her representative capacity”to enter an appeal to a jury in that court, and prayed that the same be allowed “ without the giving of a bond or the payment of costs ” ; the paper reciting that she entered the appeal to protect the estate. When the case came on to be tried on the appeal the plaintiff moved to dismiss the appeal on two grounds, first, because the defendant had neither paid the costs nor given bond as required by law ; second, because the appeal was entered for the estate only, and no appeal was taken so far as the judgment bound Mrs. Bryson individually. The justice overruled the motion to dismiss,-. and the case proceeded to trial, and resulted in a verdict for the plaintiff for the amount sued for, to be satisfied of the property of the deceased when the same should come into the hands of the administratrix. The jury further found that the administratrix had fully administered the estate. The plaintiff filed a petition for certiorari, assigning error upon the refusal -of the justice to dismiss the appeal. Upon the hearing the judge sustained the certiorari, and ordered the appeal dismissed. To this judgment the defendant excepted.
The general rule applicable to appeals requires that the appellant, as a condition precederrt to entering the appeal, shall pay the costs and give bond for the eventual condemnation-money. Civil Code, §4458. One of the exceptions to this general rule is found in section 4464 of the Civil Code,- which declares: “Executors, administrators, and other trustees, when sued as such, or defending solely the title of the estate, may
While this exact question has never been ruled by this court, what has been heretofore said in passing upon questions growing out of the right to enter an appeal under this section, as-well as under the statute from which it was taken, has some-bearing upon the question now before us. In McCay v. Devers, 9 Ga. 184, it was held: “An executor is entitled to appeal without security, when the judgment is to affect only the assets-of the decedent in his hands; aliter, where the judgment is against him personally, and for which he is responsible out of his own funds.”. In Irving v. Melton, 27 Ga. 330, it was held that in a suit in equity against an administrator for a settlement, the defendant was entitled to appeal without giving security. This decision was rendered by two Judges, Judge McDonald being absent. In Hickman v. Hickman, 74 Ga. 401, it was held that where an executor was cited to appear and settle his accounts and pay over to the legatees the amounts to which they were entitled, the executor could not appeal from, a judgment rendered against him without paying the costs and giving security. While the decision in the 27 Ga. was a suit for a settlement in a court of equity, and the decision last cited
Could she enter an appeal from so much of the judgment as bound the assets of the estate, and leave the judgment to stand in so far as it bound her individually? We know of no law which authorizes an appeal to be entered from a part of a judgment. An appeal is a de novo investigation. “It brings up the whole record from the court below, and all competent evidence is admissible on the trial thereof, whether adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case.” Civil Code, §4469. Even in a case where more than one person is bound by the judgment, an appeal entered by one will carry up the whole record, and any judgment rendered will bind the parties not appealing as well as the appellants. Civil Code, §§4461,4462; Murray v. Marshall, 106 Ga. 523. As any appeal entered by the defendant in the present case would have the effect of carrying to the appeal the entire case, and as the judgment rendered by the jus
The justice erred in refusing to dismiss the appeal, and a reversal of this judgment upon certiorari was proper.
Judgment affirmed.