Roberts v. Kite

33 Ga. App. 91 | Ga. Ct. App. | 1924

Bell, J.

A distress warrant was issued upon an affidavit of which the following is a copy:

“Georgia, Campbell County: Personally appeared before me Mrs. Annie J. Roberts, administratrix for W. T. Roberts, who being duly sworn, says that J. 0. Kite and C. C. Perkerson, doing business as Perkerson Bus Line, of said county and State, is indebted to the said W. T. Roberts’ estate $120 for rent now due and unpaid.

“Sworn to and subscribed before me this 8th day of May, 1923.

“Annie J. Roberts.

“H. S. McDaniel, N. P. & Ex. Off. J. P.”

A counter-affidavit was filed, in which the defendant partnership admitted an indebtedness of a certain amount which they alleged they “would gladly pay to any person who can give them the proper receipt for the same, but in no event will they pay the same to Mrs. Annie J. Eoberts until they are shown that she is the administratrix of W. T. Eoberts and has the right to collect the sum of rent.”

One of the defendants, J. C. Kite, was sworn as a witness for the plaintiff, and testified: “I rented two store-rooms from Mrs. Annie J. Eoberts on the first of October, 1922, at $25 per month and kept them until the first day of May, 1923, and paid her $50, and she was to do some repairing on one of the rooms and I did not pay her any more. The rent of the house would have been $150 if she had done the repairing, but the repairing she failed to do.” Thereupon the attorney for the defendants introduced a record from the court of ordinary, showing that upon April 2, 1923, “on the petition of Mrs. Annie J. Eoberts, the ordinary duly discharged her as administratrix of the estate of W. T. Eoberts, and appointed in her stead the Lowry Bank & Trust Company of Georgia as administrator;” and moved to dismiss the distress warrant, upon the ground that Mrs. Eoberts “had no right to make the affidavit and that the proceedings were void.” In her petition for a discharge Mrs. Eoberts alleged that she and her son and daughter were the only heirs of W. T. Eoberts. The plaintiff’s attorney “proposed to go on with the case,” on the ground that Mrs. Eoberts was the administratrix at the time the house was rented. He also moved to amend the affidavit so as to “let the distress warrant proceed in the name of the Lowry Bank & Trust Company of Georgia as administrator on the estate of W. T. Eoberts.” The court disallowed the amendment and dismissed the proceeding, and the plaintiff excepted. It is assigned that the court erred, (1) in not allowing the case to proceed in the name of the estate of W. T. Eoberts; (2) in not allowing the plaintiff to amend the suit as proposed; and (3) in dismissing the proceeding solely on the ground that the proceeding was void and not amendable.

If the affidavit had alleged that the rents were due to the affiant, the words “administratrix,” etc., should have been treated as descriptio personas, and the proceeding, without more, should then have been construed as one by the affiant in her own behalf as an individual. But, considering the affidavit as a whole, and especially in view of the averment that the rents were due to the “estate,” it is clear that the affiant intended to distrain in the representative character of administratrix. The court properly held that she could not proceed in that capacity when it appeared that she had resigned her commission and another had been appointed in her stead before the affidavit was executed. It may be true that the affidavit could have been amended, under the Civil Code, § 5690, by striking the allegation that the rents were due the estate and averring them due the affiant; but no amendment of that sort was offered, and no opportunity to offer it was denied. Thus, it is unnecessary to decide whether such an amendment would have been allowable.

If Mrs. Eoberts had been administratrix when she made the affidavit, and had subsequently resigned, her successor might have been substituted as a party in her stead, no other obstacle existing. But conceding (without deciding) that payment of the rents might be enforced by the administratrix, the allowance of the only amendment offered, by which it was sought to make the trust company as administrator a party, although the proceeding had been instituted by another as administrator who was not such at the time, would have added a new and distinct party; which is not permissible at law, in the absence of express provision therefor.

There was no error in dismissing the proceeding.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.