Harris v. Woodard
65 S.E. 250
Ga.
1909
Check Treatment
Fish, C. J.

(After stating the facts.) While there is much force in the contention that the suit which eventually resulted in the judgment in question was simply against W. H. Harris as an 'individual, and not against him as the executor of the will of H. C. Harris, and therefore that no judgment de bonis testatoris could have been rendered therein, we pass over the questions of construction raised as to the petition, process, and service, and come to a *108question the solution of which is, we think, free from doubt or difficulty. Was the judgment as amended one which the court could render, without the intervention of a jury, under its power to so render judgment against a defendant in a suit upon an unconditional contract in writing, when no issuable defense is filed on oath or affirmation ? Of course, if such a judgment could not have been rendered by the court originally, it could nоt be reached through a subsequent amendment of the original judgment. The court can render judgment, without the intervention of a jury, only in a suit upon an unconditional contract in writing, wherein no issuable defense has been filed on oath or affirmation, when the liаbility of the defendant can be .definitely ascertained from a mere examination of the pleadings and the contract sued on. The pleadings are examined to ascertain who are the parties to the case, the character of the suit, the liability therein alleged, and whether any issuable defense on oath or affirmation has been filed. The contract sued on is exhibited to and inspected ‍​​​‌‌​​​‌​‌​​​‌​‌‌‌​‌‌​​‌‌​‌‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​‌‌‍by the court for the purpose of ascertaining whether, upon the face thereof, it appears to be unconditional and the defendant is liable thereon as alleged. No oral evidence can be introduced and no written evidence other than the contract itself; whenever it is necessary to resort to such evidence in order to make out the plaintiffs case, the intervention of a jury is required and the judgment must be based upon a verdict. Even if the note involved in the present case — which appears to be the individual obligation of W. Ii. Harris, as thе promise is simply in personam and the words “Extr.,” etc., which follow the signature of the maker, are apparently descriptio personae merely— were construed to be an undertaking by the maker in his representative capacity as executor of the will of H. C. Harris, the court could not from its inspection have ascertained whether the estate of the testator was liable thereon or not; as it is well settled that an executor has no power, ex officio, to bind the estаte which he represents, by the execution of a promissory note. McFarlin v. Stinson, 56 Ga. 396; Lynch v. Kirby, 65 Ga. 279. See also Howard v. Cassells, 105 Ga. 412 (31 S. E. 562, 70 Am. St. R. 44). Before a judgment could be rendered against the estate, it would have to be shown that such authority had been conferred upon the executor by the will, and this would involve the introduction of the will in evidence, and the necessity for the introduction of evidence *109other than the contract sued on would require the intervention and verdict of a jury. The original judgment, which was in personam, was the only one which could have been rendered without the verdict of a jury. To allow this judgment to be, by amendment thereof, changed from one de bonis propriis to one de bonis testatoris, would be to permit the plaintiff to obtain a judgment against the estate of H. C. Harris without ever having submitted the proof necessary for such purpose, and in a way unauthorized by the law even if such proof were presented. The judgment as amended was, therefore, void.

In support of his contention, that, “If the rendition of this judgment was not proper without а jury, the irregularity ‍​​​‌‌​​​‌​‌​​​‌​‌‌‌​‌‌​​‌‌​‌‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​‌‌‍made the judgment, not void, but simply erroneous,” counsel for the defendant in error cites: Georgia Railroad Co. v. Pendleton, 81 Ga. 151 (13 S. E. 821); Grow v. American Mortgage Co., 92 Ga. 816 (19 S. E. 31); Stewart v. Sholl, 99 Ga. 534 (26 S. E. 151). The first and second of these decisions hold, that, “in a case admitting of doubt, the question of rendering a judgment by the superior court without a jury is one not involving jurisdiction, but the proper exercise of jurisdiction, and the improper decision of it is mere error and will not render the judgment void.” The present case differs from each of those, in that, unlike them, it is not a case “admitting of doubt” as to the power оf the court to render a judgment without the verdict of a jury. Mr. Justice Samuel Lumpkin, who delivered the opinion of the court in each of those two cases, in a later ease said: “In a ease where it plainly and palpably appearеd that the contract was not unconditional, a judgment rendered by the judge without a jury might be collaterally attacked as void; but in cases of doubt, everything should be presumed in favor of the jurisdiction, and even an error in adjudicating that a contract wаs unconditional could not be attacked by illegality.” Manning v. Weyman, 99 Ga. 51, 59 (26 S. E. 58). In the case under consideration it plainly appears that no judgment could be lawfully rendered against the estate of H. C. Harris without the introduction of evidence not to be found in the cohtract sued on; hence it is perfectly clear that the court had no jurisdiction to render the judgment without the intervention of a jury. In the case of Stewart v. Sholl, supra, the suit was upon a foreign ‍​​​‌‌​​​‌​‌​​​‌​‌‌‌​‌‌​​‌‌​‌‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​‌‌‍judgment, and the court (99 Ga. 531, 538) expressly de*110dined “to enter upon a discussion of the doubtful question аs to whether a judgment of a court of record can be properly classed as a contract or not,” but rested its decision “upon the broader ground, that as to suits upon judgments of courts of record, where no defense is filed which calls in quеstion the validity of the judgment, the right of trial by jury never has existed as a matter of law.”

But it is contended by defendant in error that the documentary evidence introduced by him upon the trial of the present case shows that the executor of the will of H. C. Harris was estopped from attacking the validity of this amended judgment. We do not think so. There is nothing in the petition for injunction which shows that it was brought by W. H. Harris as executor of the will of H. C. Harris; and nothing therein which even tends to indicate that it was thus brought, unless it be the words, “Exr. Will H. C. Harris,” which appear only once in the petition, and then immediately follow the name of the plaintiif, and, according to a well-settled principle of construction, are to be generally taken as descriptio personae merely. Brit evеn granting that the executor did apply for and obtain an injunction to prevent the enforcement or transfer of the original judgment until the result of other designated litigation was ascertained, upon the ground, among others, that this judgment was against him as the lеgal representative of the estate of H. C. Harris, we fail to see why this should estop the executor from afterwards insisting that this judgment was not de bonis testatoris and could not be so amended as to make it such. If the executor solemnly admitted in judicio that the judgment was against him in his representative capacity, such admission was in exact accordance with the theory of the plaintiff in execution, and he did not, in consequence thereof, change his course in the slightest degree. So it cаn not, with any show of reason whatever, be claimed that the plaintiff acted on this admission to his own injury or to the benefit of the estate which the executor represented. The truth of the matter is, as we have already intimated, he did not act upоn this admission at all. He was already proceeding along this line, and had indicated no purpose whatever of proceeding upon any other.

It is insisted, however, that there was an estoppel, because, as a result ‍​​​‌‌​​​‌​‌​​​‌​‌‌‌​‌‌​​‌‌​‌‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​‌‌‍of the injunction рroceeding, Gano’s hands were temporarily-*111tied, so that he could neither enforce the judgment’ against the estate of H. C. Harris nor against W. H. Harris individually, nor sell and transfer tire same to a possible purchaser thereof. His hands were already tiеd so far as the enforcement of the judgment against the estate of H. C. Harris was concerned; for he had no judgment against that estate, to enforce. With or without the injunction in question, the judgment was not enforceable against the estate of H. C. Hаrris. Hence such estate derived no benefit from the injunction, and Gano received no injury therefrom, in so far as the enforcement of the judgment against such estate was concerned. There is nothing in the evidence which tends to show that Gano, but for this injunction, could have sold this judgment, or which even tends to show that he would otherwise have attempted to sell it. The presumption is that, as it stood when the injunction was granted, it could not have been sold as a judgment against the estate of H. C. Harris, and certainly the plaintiff had no legal right to sell it as such.

The suggestion that Gano was injured by the injunction, because it prevented him from enforcing the judgment against W. H. Harris individually, is without force. In the first place, there is no evidence which even tends to show that W. H. Harris had рroperty which was subject to the judgment. In the next place, it is evident that the plaintiff never contemplated enforcing the judgment as a judgment in personam. Even as late as about three and a half years after the injunction was granted, and when presumably it was no longer in existence, the plaintiff was pursuing the theory that his suit was not against W. H. Harris individually, but against him as the executor of the will H. O. Harris, and that the judgment rendered therein was intended to be de bonis testatoris, and accordingly he sought and obtained аn amendment to the judgment so as to make it conform.in its terms to such theory. Besides, the estate of H. C. Harris would hardly be estopped on the ground that the injunction which the executor obtained was for his own benefit. If W. H. Harris was proceeding as an individual whеn he applied for and obtained the injunction, then the estate of H. C. Harris was not bound by his acts. If he was proceeding as executor, then the injunction which was granted was in his favor as such, and not in his favor as an individual. Of course the estate could nоt be bound by any allegation or admission made *112by W. H. Harris in the plea filed by him in the suit wherein he was sued solely in his individual capacity. In making the admission (or, more properly speaking, the allegation) relied ‍​​​‌‌​​​‌​‌​​​‌​‌‌‌​‌‌​​‌‌​‌‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​‌‌‍on, in his answer to the suit against him as an individual, he did not represent the estate, but himself only, and it was made in his own interest and against that of the estate. ■

A deed from the executor to one Hollmshead, conveying the land levied on, dated prior to the levy, was introduced by the plaintiff in execution, for the purpose, as disclosed by the argument here, of showing that the executor had no right, after he had thus disposed of 'the property, to interpose an affidavit of illegality to the levy. This evidence was irrelevant and immaterial. Upon the trial of аn illegality case, the question of title to the property levied on is not involved, and neither side can inject this issue into the case. It was decided in Zachry v. Zachry, 68 Ga. 158, that the defendant in execution could not raise this issue in a ground of his illegality. In Moore v. O’Barr, 87 Ga. 205 (13 S. E. 464), the broader ruling was madе, that upon the trial of an illegality case the title to the property levied on is not involved. Hence it was held in that case, that, although the superior court has exclusive jurisdiction of cases involving titles to land, an illegality interposed to thе levy upon land of an execution issued from a judgment rendered in a justice’s court should be returned to and tried in that court, and that where such an illegality case had been returned and tried in the superior court of the county where the land levied uрon was located, the judgment rendered therein by that court was absolutely void, for want of jurisdiction. Illegality is a purely statutory remedy, and the statute provides: “When an execution against the property of any person shall issue illegally, or shall be proceeding illegally, and such execution shall be levied on property, such person may make oath in writing, and shall state the cause of illegality,” etc. Civil Code, §4736. Certainly, in the present case, the amended execution was issued agаinst the property of the estate of H. C. Harris, and it was proceeding against the property of that estate; and if it was issued, or was proceeding illegally, the executor representing that estate had, under the provisions of the statute, thе right to arrest its progress by affidavit of illegality. Besides, the land was levied on as the property of the defendant in execution, the plaintiff was seeking *113to subject it as such, and it did not lie in his mouth to deny that the levy had been made upon property of the defendant.

Judgment reversed.

All the Justices concur.