166 Ga. 667 | Ga. | 1928
The question as to who are parties to an action is generally to be determined by inspection of the whole record, including the petition, prayer for process, process, return of the sheriff, etc. Wallace v. Wallace, 142 Ga. 408 (83 S. E. 113); John Holland Pen Co. v. Williams, 7 Ga. App. 173 (66 S. E. 540); Wadley v. Oertel, 140 Ga. 326 (78 S. E. 912); Trust Company of Georgia v. Wallace, 143 Ga. 214 (84 S. E. 538). It is a recognized rule of law in this State that a judgment rendered against one sued as an individual is not conclusive of any right he may have in his representative capacity such as executor, administrator, or guardian. Braswell v. Hicks, 106 Ga. 791 (32 S. E. 861). In the instant case the controlling question is whether F. A. Hamilton was sued and bound by a judgment rendered at the October term, 1921, of Whitfield superior court in his individual or representative capacity as the executor of J. W. Bowie, deceased. The original petition in the case in which the judgment was rendered was filed by Mrs. Kate Speck as plaintiff “against F. A. Hamilton, executor of J. W. Bowie,” as defendant. The suit was for specific performance of a parol contract alleged to have been made and fully performed upon the part of the plaintiff, between the plaintiff and J. W. Bowie during his lifetime, whereby, in consideration of the plaintiff’s remaining on described property and taking care of J. W. Bowie “as long as he should live, petitioner should have the sole and entire use of said property, and at the death of J. W. Bowie all of said property together with any and all improvements were to become the property of petitioner absolutely in fee simple.” The petition also alleged that after the making of the contract and partial performance thereof by the petitioner, J. W. Bowie executed a will making a dif
Properly construing the petition and looking to its substance, the suit was against F. A. Hamilton in his representative capacity as executor of the will of J. W. Bowie. Construing the process in connection with the suit and giving due weight to the caption, to the process, and to the words “the defendant, F. A. Hamilton,” as contained in the body of the process, the process was against F. A. Hamilton in his representative capacity as executor of J. W. Bowie. If the process had been addressed only to “F. A. Hamilton,” the meaning would not have been so clear, but it was to F. A. Hamilton, “the defendant,” which shows that the F. A. Hamilton referred to was the defendant named in the petition, the substance of which was that F. A. Hamilton in his representative capacity was the defendant. Upon the same reasoning the acknowledgment of service by “F. A. Hamilton” was an acknowledgment of service by F. A. Hamilton in his representative capacity, he being the only defendant named in the petition and process, and the only person upon whom
In an action of complaint for land, instituted in 1927, by F. A. Hamilton as executor of the estate of J. W. Bowie, against persons claiming under Mrs. Kate Speck, the petition which alleged that the defendants claimed title under J. W. Bowie also undertook to allege that the defendants’ title was inferior to the title of plaintiff as executor, and in doing so set out in the petition as an exhibit the portions of the record in the former case referred to above. Upon proper construction of the record in the former case, the allegations of the petition in the present case show that the defendants had a superior title, and the judge did not err in dismissing the petition on general demurrer.
The case differs on its facts from Neal-Millard Co. v. Owens, 115 Ga. 959 (42 S. E. 266), in which Mrs. Owens was sued as a defendant in the petition, and the process was not against her but was against another person. Substantially similar distinctions may be drawn between this and all other cases relied upon by the plaintiff in error. Judgment affirmed.
