58 Ga. App. 72 | Ga. Ct. App. | 1938
A suit was brought against the sureties upon the bond given by the ordinary as a condition precedent to his taking office. The petition alleged, in paragraph 4, “that on November 14, 1931, J. M. Gann, acting in the official capacity of ordinary of Cobb County, Georgia, passed an order in the matter of the estate of Roswell O. Jones, deceased, said estate being administered by E. W. Jones as administrator thereof, authorizing the payment of the sum of $443.58 to the ordinary of said county, said sum being the distributive share of said estate to Charlie Jones, an heir at law of said estate, his address being unknown; that said amount was paid to the ordinary, a copy of said order and the receipt for said funds being duly recorded in return book, page 505, of the records of the ordinary’s court of Cobb County, an extract thereof showing said facts being hereto attached, marked exhibit ‘B,’ and made a paid of this petition and paragraph.” The exhibit is as follows: “Charlie Jones, who is an heir at law of deceased estate, his whereabouts is unknown, and the last knowledge of him was two years ago or more, and his address is not known, if living. Administrator desires to close said estate and be relieved of the expense bond; comes now and pays into court or the ordinary of said county the amount and share going to said Charlie Jones, and asks that he be relieved. The amount of interest going to him is $443.58. Total amount paid out, $7340.70. Received of E. W. Jones, Ad’tor of the estate of E. O. Jones, four hundred and forty-three & 58/100 dollars as above stated. J. M. Gann.” Paragraph 7 alleged: “That J. M. Gann, as ordinary, failed to account for said funds in the ordinary’s court when he retired from office, and has failed and refused to account to E. W. Jones as administrator of the estate of Eoswell O. and Z. T. Jones, and/or Charlie Jones’s estate and/or his heirs at law, or to account for said funds in any manner whatsoever.” The petition also al
The ruling announced in headnote 1 needs no elaboration.
The sureties on the bond were “bound unto His Excellency L. G. Hardman, Governor of the State of Georgia” and the suit says: “The petition of the State of Georgia, for the use and benefit of E. W. Jones as administrator of the estates of Roswell O. Jones, deceased, and Z. T. Jones, deceased, as plaintiff, respectfully shows to the court the following facts:” The defendant contends: “To maintain a suit for the use of another, there must be a legal right of action in the party bringing it. And if he has no legal right of action, the suit is properly dismissed on demurrer. The fact that the plaintiffs in their pleading declare their intention to sue for the use and benefit of a third person does not raise any question as to the liability either of the person or of the defendants to such third person and was subject to dismissal on general demurrer.” This exception is not meritorious. The Code, § 81-1307, allows a plaintiff, when it becomes necessary for the purpose of enforcing his rights, to substitute the name of another person in his stead, suing for his use. “Since such an amendment is allowable for the designated purpose ‘of enforcing the rights of such plaintiff,’ some showing should be made to the court that some right of the original plaintiff is connected with the cause of action he desires to assert in the name of the nominal party to be substituted; but this right need not be so perfect as to be capable of direct enforcement, either in law or in equity. It is analogous to the practice in ejectment, where the real plaintiff is al
Before the constitutional amendments approved February 23, 1850 (Ga. L. 1849-1850, p. 117), and repassed December 5, 1851 (Ga. L. 1851-1852, p. 50), and the act of January 21, 1852 (Ga. L. 1851-1852, pp. 90, 96), carrying that constitutional amendment into effect, the inferior court of each county was the court of ordinary when sitting for “ordinary [probate] purposes.” It was distinct and separate from the court when sitting for the trial of criminal and civil business. When sitting as a court of ordinary it had the power to elect a clerk of the court of ordinary, whose duties were prescribed by law, and who was required to give a bond for the faithful performance of his duties as clerk. The constitutional amendment above mentioned took the duties away from the inferior courts and transferred them into the hands of one man called the ordinary, and gave him the right to act in the dual capacity —as judge and as clerk. The act of 1852, supra, prescribed “that each and every ordinary, before he shall enter on the duties of his office, shall give bond and security in the sum of . . dollars for the faithful discharge of his duties as clerk.” “The effect of the change was to substitute one man, the ordinary, in relation to probate matters, for the five justices of the inferior court, and to substitute him as clerk for the clerk of the court of ordinary as it had existed before that time. . . The clerk of the old court [of ordinary] and his sureties were liable upon his bond for any breach of his official duties, by which others were' injured, . . that is, for the failure to perform any duty required of the clerks by law. As clerk the ordinary is liable for the non-performance or neglect of any duty devolving .upon him as clerk.” State of
Should the judge of a superior court merely order certain money paid into the superior court, nothing else appearing, who would be presumed to receive it upon behalf of the court? We think the clerk thereof. Code, § 24-2722. By parity of reasoning, where the petition in the instant case shows that “J. M. Gann, acting in his official capacity of ordinary, passed an order . . authorizing the payment of $443.58 to the ordinary of said county,” and the “return book” shows that the administrator paid this amount
We think the petition was sufficient to withstand a general demurrer, as it in effect alleges the receipt by the clerk of a court of certain money under and by virtue of an order or judgment of the judge thereof. Whether this order or judgment was judicially correct or not does not control the liability of the clerk where he fails to account therefor when called upon so to do. “If a person has been injured and suffered damage from the consequence of any wrongful act committed by an officer under color of his .office, he can sue such officer personally or upon his official bond, and re
Judgment reversed.