37 Ga. App. 73 | Ga. Ct. App. | 1927
Although it is the general rule that heirs at law can not maintain a suit upon a chose in action in favor of their intestate, and that such a suit can be brought only by an administrator (Brown v. Mutual Life Ins. Co., 146 Ga. 123, 90 S. E. 856; Hill v. Maffett, 3 Ga. App. 89, 59 S. E. 325; Wilson v. Brice, 23 Ga. App. 734, 99 S. E. 385; Armstrong v. Harper, 25 Ga. App. 71, 102 S. E. 463), there may exist special circumstances authorizing an exception to this rule in some instances. Denny v. Gardner, 149 Ga. 42 (99 S. E. 27). Thus, where, as in the present case, the plaintiff: in a judgment died intestate, and an administrator who was appointed to administer his estate was subsequently discharged as having fully administered the estate, and had so administered it, except that he had “failed to collect anything on the judgment aforesaid,” and where, prior to his discharge, the administrator had “turned over” to the heirs at law of such intestate an execution which had been issued upon such judgment, and where, after the execution was thus placed in the hands of the heirs at law and after the administrator had been discharged, the judgment became dormant, and where there was no other administration “on or for said estate,” a suit to revive the judgment, brought against the defendant therein, by all the heirs at law of the plaintiff, was not subject to demurrer upon the ground that it could be maintained only by an administrator or other legal representative of the plaintiff in the judgment. Under the special facts shown, the case appears to be controlled in principle by the decision of the Supreme Court in Moughon v. Masterson, 140 Ga. 699 (1, 5) (79 S. E. 561). A second administration was not necessary, and the suit could proceed in the name of the heirs at law.
Judgment affirmed.