81 Ga. 290 | Ga. | 1888
It appears from the record iii this case that, in 1866, Graham was appointed administrator of Derryberry. At the time of his appointment as administrator, he had in his hands as an attorney at law, for collection, divers claims against Derryberry. At the time the present action was brought, none of these claims had been paid, and all of them were barred by the statute of limitations. In Derryberry’s lifetime, judgment had been obtained against him upon certain claims by Allison, Anderson & Co. After his death an attempt was made to revive this judgment- by scire facias; which proceeding was dismissed, upon the ground that affidavit of the payment of taxes wTas not filed by the plaintiff; and the ease having been brought to this court, the decision of the court below was affirmed. Scire facias was again sued out, and a demurrer thereto was again sustained, upon the ground that the debt due upon the judgment was barred by the statute of limitations. A motion was made to set aside this judgment dismissing the scire facias, but no action was ever taken thereon. A motion having been made to make Graham a party, as administrator of Derryberry, Graham came in and voluntarily consented to be made a party to the judgment. This judgment and the claims in Graham’s hands against Derryberry above referred to would, if paid, have consumed all the money in his hands as administrator. As already stated, they were
In the case of Bennett, ordinary, for use, vs. Graham, administrator, et al., 71 Ga. 211, this court held that the judgment in favor of Allison, Anderson & Co. against Graham, as administrator,bound him absolutely, but was not conclusive against his sureties ; that his having been-made a party to that judgment did not bind them, but bound him only; that the claim of Allison, Anderson & Co. was not a subsisting debt against the estate, and Graham was not required to pay it, the judgment of the court declaring the same barred by the statute of limitations not having been reversed or set aside; and hence the sureties, being bound only for the faithful discharge of his duties as administrator according to law, were not liable for the non-payment of this debt by the administrator, thus declared barred by the court.