117 Ga. 877 | Ga. | 1903
It appears from the record that Battle-died in Schley county, and that W. J. and C. L. Ross were appointed his administrators and gave bond in accordance with the law. After a sufficient time had elapsed for them to settle and fully administer the estate, the heirs at law of Battle cited them to appear before the ordinary for an accounting and settlement. After a hearing before that official and a judgment in favor of the heirs, the administrators appealed to the superior court. In that court the case was referred to an auditor, who made a report in favor of the heirs. Exceptions of law and fact were filed by the administrators. On the trial before the judge, he disapproved the exceptions of law, disallowed the exceptions of fact, and entered up judgment against the administrators for the amount found by the auditor. On this judgment execution was issued, and a return of nulla bona was made by the sheriff of Schley county. After this return of the sheriff, the heirs of Battle brought suit in Stewart county, upon the administrators’ bond, against the administrators and their sureties. The petition shows that C. L. Ross resided in Stewart county, that W. J. Ross resided in Colquitt county, and that none of the sureties on the bond resided in Stewart county but resided in other counties of the State. The petition sets out the history of the litigation as above recited, and alleges that the auditor in his report recommended a “finding that your petitioners . . do have and recover
After much reflection we have come to the conclusion that the able and learned judge erred in overruling the demurrer. The question raised is a new one in this State, and, after a lengthy inves
Having shown that the plaintiffs in the court below had already obtained a judgment de bonis propriis against the administrators, it follows that they could not obtain another judgment against them on the same cause of action. This brings us to the question as to whether the court in Stewart county had jurisdiction to render judgment against the sureties on the administration bond when judgment could not be obtained against the only defendant who resided in the county. It is now well settled law in this State, that where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident codefendant is liable in the action. In the case of Lester v. Mathews, 56 Ga. 656, this court held: “ If the administrators reside in the county giving the court jurisdiction, and all the other defendants in other counties, and there be no cause of action against the administrators, the court will not have jurisdiction of the non-residents of the county, though a good cause of action exists