12 Ga. 14 | Ga. | 1852
By the Court.
delivering the opinion.
When this bill was originally filed, it was demurred to by the defendants, and that demurrer was overruled. The question
Although the original bill against Perryman which is sought to be reviewed, was regularly served, as appears upon its face, yet, it is alleged that the entry of service v7as fraudulently procured, after Perryman had left the State. The allegation as to the fraudulent procurement of the entry of service, is an issuable fact, which must be determined by evidence outside of the record and decree.
The existence of an order is virtually admitted, but its not being a legal order, is the conclusion of the complainants. The order itself should have appeared on the face of the complainant’s bill, so that the Court might determine whether it was a legal order or not. A demurer does not admit conclusions of law. The second ground of alleged error apparent on the face of the record and decree is, that said decree demands satisfaction out of the private estate of Perryman, and not out of the estate of Jas. R. Lowry in his hands. It appears on the face of the complainant’s bill, that the verdict was found by the Jury against Perryman, as administrator on the estate of Jam.es Lowry, and that the decree entered upon said verdict was against Perryman in his individual capacity, and not as administrator. The/orma2 variance between the verdict of the Jury and the decree entered thereon, is a matter which can be remedied by an amendment, so as to make the decree conform to the verdict: in fact, the verdict of the Jury under our system of Equity practice, settles the rights of the parties;' the decree can only be éntered in conformity thereto.
We shall therefore reverse the judgment of the Court below, with directions to have the original decree against Perryman amended, if necessary, so as to conform to the verdict rendered against him as administrator.