146 Ga. 442 | Ga. | 1917
A. M. Eobinson and others instituted an action against M. M. Ham and others, to recover on debts incurred by the Howard Lumber Company, on the ground that the defendants had organized the company and had transacted business in its name before the minimum capital stock had been subscribed for. At the appearance term the defendants filed pleas to the jurisdiction and to the merits. Before the trial of the case M. M. Ham died testate. Fannie B. Ham probated his will, and, on May 4, 1914, qualified as his executrix. On August 5 following, on motion of the plaintiffs, the court passed an order requiring Mrs. Fannie B. Ham, as executrix of the estate of M. M. Ham, to show cause, on September 7, 1914, why she as such executrix should not be made a party defendant in the case. A copy of this order was mailed to the attorney of record for the defendant. In response to the rule to show cause why she should not be made a party defendant, Mrs. Fannie B. Ham, as executrix of M. M. Ham, filed her response, setting up that the court was without jurisdiction to make her a party, no legal process having been served upon her; that the motion and order to make her a party was received by her
1. The statute provides that in case a defendant shall die pending a suit, the plaintiff may sue out a scire facias immediately after the expiration of twelve months,from the probate of the will or granting of letters of administration, requiring such executor or administrator to appear and answer to the cause. Civil Code (1910), § 5599. An additional method is authorized by the act of 1895, which is incorporated in the Civil Code (1910), §§ 5601, 5602. There it is provided that when it is necessary or proper to make parties, the judge shall cause a rule to be prepared and signed by him either in term time or vacation, calling on the person to show cause why he should not be made a party, the answer to which rule may be heard in term or vacation. This latter procedure is cumulative to the former and is that followed in the present instance. Inasmuch as the statute (Civil Code, § 4015) exempts an administrator or executor (Civil Code, § 3892) from suit for twelve months after 'his qualification, and the procedure to make parties by scire facias permits the plaintiff to proceed after the expiration of twelve months from the probate of the will or the granting of letters of administration, it would seem that if the course authorized by §§ 5601 and 5602 be pursued, the motion should be made after the twelve months has expired. This was not done in this case. Nor was a copy of the rule served by an officer or by some other person. Service by mail is not a recognized manner of serving papers of this kind. Nevertheless, as the plaintiff’s testator was a party to the original suit and she admits having received a copy of the rule to show cause, and as the order making her a party was entered after the lapse of twelve months from her qualification as executrix, the court will treat the matter of service, under the circumstances, as more a matter of irregularity in form than a defect in substance, and will proceed to consider the other ground of objection.
2. The executrix of the deceased defendant makes the point