97 Ga. 219 | Ga. | 1895
1. Where an action upon promissory notes executed by a partnership and having upon them endorsements signed by another guaranteeing their payment, was brought against the two individuals composing the partnership and the legal representatives of the estate of the endorser, who had died, and pending the action one of the members of the part-' nership also died, it was too late, after the rendition in this action of a judgment against the partnership as such, against the surviving partner individually and against the estate of the deceased endorser, to raise, by illegality, objections to this judgment, based upon the ground that it was not authorized by the declaration, or that the failure to sue the partnership as such increased the risk of the endorser’s estate and subjected it to greater liability.
2. In such case it was error to strike on demurrer grounds of an affidavit of illegality filed by the administrator and administratrix of the deceased endorser, they being defendants in execution, alleging that the notes upon "which the judgment was rendered were given for the purchase of certain personal property, that the execution issued from such judgment was levied thereon, the property being at the time of sufficient value to satisfy the execution, that after the levy the plaintiffs took possession of the property and sold it at private sale to one who removed it beyond the limits of the county, that all this was done without the consent of the administrator and administratrix, and that in consequence of this conduct of the plaintiffs they failed to make the amount due on the execution out of the property thus disposed of and which was primarily subject to their judgment.
3. An allegation in an affidavit of illegality that an execution has been fully paid off and satisfied since the rendition of the judgment, is good in substance and should not be stricken on general demurrer. A special demurrer alleging that there was a
Judgment affirmed.