113 Ga. 384 | Ga. | 1901
T. B. Brooks, a non-resident of the State, brought an action of ejectment in the superior court of Decatur county, against McCowan as tenant in possession, and Bower and Donalson were made parties defendant thereto on their own motion. Pending the trial an equitable amendment to the petition was allowed, and the plaintiff recovered a judgment under the allegations of the amendment. A motion for a new trial filed by the defendants having been overruled, they tendered and had certified a bill of exceptions, which was filed in the office of the clerk of this court on April 7, 1900. Subsequently to that date T. B. Brooks, the plaintiff and the sole defendant in error, departed this life. His death was suggested of record at the October term, 1900, of this court, and the case was continued. On the first day of the present term the plaintiffs in error presented a petition, setting forth that, when it appeared that the estate of T. B. Brooks was not likely to be administered upon in this State, they had caused the county administrator of Decatur county to apply for letters of administration on the estate, that on this application citation was duly issued and published, and at the return term of the citation Alfred H. Brooks and Rufus S. Woodward, as executors of the last will and testament of T. B. Brooks, deceased, late of Orange county, State of New York, filed objections to the granting of administration, on the ground that T. B. Brooks was a citizen and resident of the State of New York at the time of his death, that he died testate in that State, and that the objectors were his executors, duly qualified in the State of New York, and were residents of that State. With these objections they filed with the ordinary a certified copy of the will and probate and qualification and acceptance of the trust by the executors in the State of New York. They prayed that the will might be proved and admitted to record in this State. The ordinary, after having admitted such foreign will to record in the manner prescribed by
At common law a writ of error did not in any case abate by the death of the sole defendant in error, whether it happened before or after errors were assigned. 2 Tidd’s Pr. (4th Am. ed.) § 1163, and cases cited; 2 Ene. P. & P. 200, and cases cited; Works’ Courts & Jur. 307; Elliott’s App. Pro. § 166. It necessarily follows from this, that when a court having jurisdiction to determine the questions made by a writ of error has acquired jurisdiction of the case, it does not lose the power to render a decision in the same on ac
This rule continued in force until January 5, 1897, when it was-in turn superseded by a rule of which the following is a copy: “ The death of a party to a case pending in this court may be suggested by counsel for either side at any time in open court, and the court shall thereupon cause to be issued and served upon the legal representative of the deceased party, if there be one, a rule nisi requiring him to show cause, upon a day named, why he should not be made a party, and upon the return of such rule the court shall take appropriate action in the premises. The legal representative of the deceased party may voluntarily become a party to the case at any time. If he does so on or before the call of the case at the first term, it will, with his consent, be heard at that term, or, in the absence of such consent, will be continued. Where-a representative of the deceased party has not been appointed and made a party in this court on or before the last day for argument at the second term, the case will be dismissed. A temporary administrator will be regarded in this court as a competent party.” Civil Code, § 5626, Rule 31. Section 5561 of the Civil Code declares : “ Should any party die after the bill of exceptions has been signed and certified, the death being suggested of record in the Supreme Court, parties shall be made by scire facias, in the manner heretofore prescribed by the rules of said court.” This provision of law first appears in the Code of 1863, § 4177. It is argued that upon the adoption of the Code of 1863 the power of the court to
Under the views above presented, the court had authority to issue
Since the act of 1877 (Civil Code, § 5571), and possibly prior to that date, notice by mail has been the recognized method of giving notice to litigants and counsel of the passage of orders affecting their rights in the cases pending in this court; and hence notice by mail which was required to be given the executors in the present proceeding was in conformity with a long established and heretofore unquestioned practice. Upon the day fixed in the order for the executors to show cause why they should not be made parties, no cause was shown which would make it improper for the legal representatives of Brooks to be made parties in his place. The only cause shown was of the character above referred to, which simply brought in question the right of the court to require them to come in and be made parties and have service made upon them. If these executors had never appeared in the court of ordinary and filed the will of their testator, there would have been administration on his estate in this State, and the administrator could have been made a party to the case. Having defeated the plaintiffs in error in their efforts to have administration upon the estate, by assuming the administration themselves, they will not be heard to assert in this
Ordered accordingly.