137 Ga. 90 | Ga. | 1911
E. M. Miller and others filed an equitable petition in Troup superior court against H. C. Butler and H. W. Miller, trustee, in wbicli they made substantially the following allegations: The plaintiffs, except two who are minors, are the grandchildren of
The defendant Butler filed general and special demurrers to the petition, upon the hearing of which the court passed the following order: “It appearing to the court by the petition of plaintiff that Willis Miller has no representative on his estate in this case, and the defendant having demurred to said petition on the ground that
Did the court below commit error in sustaining the demurrer and dismissing the case ? We think not. The controlling question in this case is whether a representative of the estate of Willis Miller,' deceased, should have been made a party to the suit in the court below. The trial judge, in sustaining the demurrer, thought that it was necessary to make a representative of this estate a party to the suit brought by the plaintiffs to recover the land in controversy; and so do we. B. T. Winn, the former administrator of the estate, was a party of record to the former suit and was a party of record to the decree under which the land in controversy was sold. This decree, rendered in 1895, was the basis of the execution levied upon the land which was bought by the defendant Butler. One of the prayers of the petition is that the decree rendered in 1895 be declared fraudulent and void. To do so would be to leave the case pending in Troup superior court as it stood prior to the decree. Under the allegations of the petition, the estate of Miller certainly had an interest in that suit. Whatever interest the estate of Miller had in the suit prior to the decree, it would still have if the decree were set aside. It is not alleged in the petition that the estate, is insolvent, or that there are no creditors or heirs other than plaintiffs. The burden is on the plaintiffs to allege facts showing that the estate of Willis Miller has no such interest in the result of the suit as to make it necessary that his estate be represented therein. The decree of May, 1895, was rendered in a case to which H. W. Miller as trustee of the plaintiffs was a party, and by his consent. It is therefore binding on the plaintiffs until reversed or set aside; and until this be done the plaintiffs cannot obtain any of the relief
Affirmed.