32 Ga. 63 | Ga. | 1861
delivering the opinion.
In Alexander vs. Mercer and others, (7 Ga. R., 549) this Court held that where an administrator, upon the discharge of his first sureties, gave a new bond, and subsequently became insolvent, equity would entertain jurisdiction of a bill, filed against the administrator and both sets of sureties, praying a discovery of the amount of the devastavit and the time when it occurred, in order to charge each set of sureties according to their respective liabilities on their bonds.
The case now before us, was brought before this Court at Columbus, January term, 1855, upon the following brief summary of facts:
Vm. Moughon died testate, appointing John Mitchell his executor-—who qualified and took possession of his estate; who was afterwards appointed guardian of Sarah, the infant daughter of the testator. Mitchell, after managing the estate for many years, died testate, without dividing the estate, constituting Alexander McDougald and others his executors; McDougald qualified and took exclusive possession and control of the estate of Mitchell, amounting to $100,000. Mc-Dougald was also appointed guardian of the minor; and owing to the transfer of the guardianship from Harris to Muscogee county, and other causes charged in the bill, several bonds, with different sets of securities, were giyen. Actions were commenced at law on the several bonds; and pending these suits, Maddox and wife,, (formerly Sarah Moughon,) filed their bill against the principal and all of the sureties on both bonds, alleging the foregoing facts; and further, that it was impossible to prove at law at what time the guardian committed the breaches complained of, in order to distribute the liability properly among the several sets of sureties upon their respective bonds. That the several sets of securities denied that the breaches occurred during the time of their liability; and cast upon the complainants the onus of proving the same—which the complainants charged it was impossible for them to do. The bill prayed for discovery and relief.
The Court held, 1st. That the hill was not objectionable on the ground of multifariousness. 2d. That actions having been instituted at law upon each of the bonds, the remedy was ample ; and that a bill filed against the principal and all the different sureties could not be entertained, there being no allegation of the insolvency of the principal; and 3d, that where several suits are pending at law, if discovery is needed, and a resort is had to Chancery to obtain it, a separate bill must be filed in each case; and the whole cannot be consolidated for that purpose.
Our conclusion in the case, consequently, was that the demurrer to the bill should have beeen allowed. (McDougald et al. vs. Maddox and wife, 17 Ga. R., 52.) We reaffirm that decision. If the principal be solvent, you never can reach the sureties, of course, so as to lay a foundation for a bill in equity, to settle their conflicting interests; as Courts do not sit to adjudicate abstract questions but practical issues.
The case went back to the Circuit Court, and instead of being amended by the complainants, as it was their right to have done under the Act of 1853-4, which allows a complainant in equity to amend his bill at any stage of the proceeding—and this was a stage at 'which it was amendable, as ruled by the Court in Walker vs. Cook, the first bill was suffered to be dismissed. 17 Ga. R., 126.
The complainants have filed a second bill, substantially, if not literally the same as the first, with this additional charge not contained in the dismissed bill—“Complainants are •informed and believe, and so expressly charge that the said Alexander McDougald, the principal in each of said bonds, is insolvent, and unable to pay the recovery that may be had in said cases on said bonds; and that whatever recovery may be had thereon, will have to be paid by the sureties on said bonds, according to their respective liabilities, when the same is ascertained and apportioned as sought in and by this their.
To this bill, thus amended, the defendants demurred for want of equity; and also plead the first bill and the judgment of the Court thereon in bar to any recovery in the second bill. The presiding Judge overruled both the plea and demurrer; and the defendants excepted, and now assign the same as error.
Adhei’ing, as wc do, to the decision in Mercer’s case, in 7th Georgia, we hold with the Circuit. Court, that there is equity in the bill. Indeed, the equity of this bill is stronger than it was in that, for the reason, that while the facts are in the main similar, they are rather more complicated in this case, owing to the proceedings which took place in Harris county, under the first bond given by McDougald.
It is objected to the additional allegation in this bill that while it charges in the first instance the insolvency of Mc-Dougald, it then modifies the charge by stating that if not totally insolvent his estate is insufficient to answer the amount of his liability to the complainants. The defendants insist that taking the averment most strongly against the pleader that it only alleges that the principal’s means are limited greatly below the amount which the complainants are entitled to recover; and that a portion of the recovery will fall upon the securities. Concede this. Still if there is any deficiency to be collected out of the securities the equity of the bill is undiminished. I will go further. If complainants in this and the like cases, allege a well grounded apprehension, that from any cause whatever, they have reason to fear that the property of the principal will not be enough to satisfy their recovery when obtained, the equity of the bill will remain unaffected. It is only where the principal is solvent that' they lose their right to come into equity. True, the party interested has the right under the statute to sue principal
And suppose the plaintiff sues principal and securities together at law on any one of the bonds, and that set of securities prove satisfactorily that the devastavit did not occur during the time for which they were liable—the difficulty suggested in Mercer’s case, 7th Georgia—still a judgment will go for the whole amount against the principal; and if he be good, what matters it that the securities get off?
Some question was made as to the non-joinder and misjoinder of parties. If this ground was well taken, the bill could be amended. But our judgment is that no necessary parties are omitted.
Is the plea in bar good ?
It is well settled by this and all other Courts, that the dismissal of a former bill is only a good plea in bar when the material allegations in the two bills are the same; (7 Johns, Ch. Rep. 1; 3 DeSaussure Rep., 63.) Now the former bill failed to allege the insolvency of McDougald; and was dismissed because the complainants showed no title to the relief which they sought. The present bill contains that averment; in other words the complainants show title to the relief which they seek. The two bills, then, are materially different, and consequently the dismissal of the first constitutes no bar to the bringing of the second.
Judgment affirmed.