140 Ga. 769 | Ga. | 1913
The Chattanooga and Chieamauga Interurbaü Railway Company was proceeding to construct its railway through a tract of land. Elizabeth Morrison, as temporary administratrix' of Mattie Thomas, decedent, appointed under the statute, pending
1. The first question which arises is whether the plaintiff had the right to file a proceeding to enjoin the taking of possession of a part of the land left by the decedent and the laying of its track thereon, if the evidence justified the finding that this was unlawful. By the Civil Code (1910), § 3935, it is declared that the ordinary may at any time grant temporary letters of administration upon any unrepresented estate, for the purpose of collecting and taking, care of the effects of the deceased. Section 3936 requires that a bond be given for double the amount of the personal property belonging to the estate. Section 3937 declares that a temporary administrator may sue for the collection of debts or personal property of the estate. Section 3938 provides, that, pending'an issue of devisavit vel non upon any paper propounded as a will, temporary letters of administration may be granted, unless the will has already been admitted to probate in common form, and letters testamentary have been issued.
Without discussing the various forms of special administration which were permissible under the common law, it will be seen from the above summary of the provisions of our code that it is contemplated that there will be a permanent administration, but that provision is made for a temporary appointment in two instances: first, where there is an unrepresented estate; and second, pending an issue of devisavit vel non. In construing the power of an administrator so appointed, and its limitations, .the purpose of the appointment is to be kept in view; and it must also be remembered that in this
It will thus be seen that while a temporary administrator can not sue to recover land held adversely to the estate, or for mesne profits thereof, or maintain similar actions, and there is a distinction between his powers in regard to realty and personalty, it has been recognized that, under certain circumstances, he may take proper action to protect and preserve real estate against unlawful seizure or sale or illegal interference. In the present case, if it be conceded that the defendant was unlawfully proceeding to enter upon the land forming a part of the estate of the decedent and to appropriate a portion of it, to the damage of the estate, without condemning it in accordance with law, who should stop such illegal action if not the temporary administratrix? If certain persons-claiming to be the heirs of the deceased should apply for an in
The case falls within the authorities above cited, so far as the preservation of the status is concerned. But so far as the petition seeks to go further and recover damages on account of what has already been done, we think it is not sustainable.
2. Having determined that the plaintiff was a proper party to institute and maintain the suit for an injunction, did the presiding judge abuse his discretion in granting it? It was contended by counsel for the defendant that all of the heirs of the decedent had agreed to allow the defendant to' enter upon the land without having first condemned it, and that the defendant had begun proceedings for the purpose of condemnation, but they had been postponed until the result of the litigation in regard to the will should be known. If the will should be set aside, as it does not appear that the decedent left any children or descendants of children, her husband would be her heir. Civil Code (1910), § 3930. While there are some general expressions on the part of witnesses for the defendant that all parties in interest agreed, it does not appear that the husband of the decedent did so, or was notified of the condemnation proceedings. Again, it appears that the land in controversy was included in the residuary clause of the alleged will, and it was alleged by the plaintiff that the legacy thereunder would have to be abated in order to pay expenses of administration, funeral expenses, and the like. The agreement, on the part of the plaintiff as an individual, for the ’defendant to enter upon the land would not be conclusive upon her in her representative capacity, if she were1 not the sole beneficiary. Moreover her agreement provided that the proceeding to condemn the land should be instituted within a limited time, or the consent should go for naught. There' was evidence tending to show that while it was technically begun, it was postponed by the defendant, though the plaintiff, through her husband, was asking that it proceed. If it was not a valid proceeding,
3. The only other point for determination is one of practice. The presiding judge, on the hearing of the application for an interlocutory injunction, over objection by counsel for the defendant, allowed certain witnesses, sworn on behalf of the. plaintiff, to be examined orally, in lieu of requiring their testimony to be reduced to the form of affidavits. There was no objection by the witnesses on the ground that they could not be compelled to attend such a hearing by compulsory process; nor did any of them decline to make affidavits, so as to raise the situation provided for by the Civil Code (1910), § 5918. When such a question is raised by a witness, we will deal with it as may seem proper in the light of his objection. Here the witnesses for the plaintiff were present, and the sole objection to admitting their oral evidence came from the defendant. The defendant was permitted to cross-examine them, and did so. If it had no right to do this, it was accorded a privilege of which it can not complain. No evidence offered by the defendant by affidavit or otherwise was rejected. No application was made to require affidavits to be filed, and it does not appear that the defendant was taken by surprise, or that it asked for further time to rebut such evidence; nor was it shown that any injury was done to it. We fail to see how the defendant was hurt. Generally such hearings have been by affidavits. But there is no inviolable sanctity about an affidavit as against oral evidence. It is a matter of practice. And where the witnesses are present and not objecting, we think the presiding judge has a discretion as to whether he will hear affidavits or oral testimony. Indeed every one who has presided as a judge on the circuit bench will doubtless recognize the fact that not infrequently the truth can be reached by a few pertinent questions, though it may be beclouded and obscured in pages of carefully prepared affidavits. It requires more time to hear oral evidence; but it is more important to learn the truth than to save time. Of course the power should be justly used so as not to
In Boyce v. Burchard, 21 Ga. 74, and Hester v. Exley & Keller, 130 Ga. 460 (60 S. E. 1053), the rejection of certain evidence was affirmed, but oral evidence and affidavits were treated on the same basis. See also 7 Enc. Ev. 1358; Davis v. Covington & Macon R. Co., 77 Ga. 322; 22 Cyc. 942; Bisp. Eq. (8th ed.) 16; Civil Code (1910), § 5406; Rogers v. Rogers, 103 Ga. 763 (30 S. E. 659); Robertson v. Heath, 132 Ga. 310 (64 S. E. 73).
Judgment affirmed.