140 Ga. 326 | Ga. | 1913
(After stating the foregoing facts.)
1. The little word “as” is quite an important word in determining whether a suit is by or against an administrator or executor in his representative character or as an individual. But it is neither a sine qua non of pleading ip a case against an executor in that capacity, nor is it a ne plus ultra of legal construction. The general rule' is that an instrument signed by one as agent, trustee, guardian, administrator, executor, or the like, without more, is the individual undertaking of the maker, “such words being generally words of description.” Civil Code, § 3570. A suit by one with the word “administrator,” or “executor,” added to his name, especially on a contract made by him, will ordinarily be treated as being his individual suit; and likewise when the suit is against him. Woodard v. Harris, 138 Ga. 751 (76 S. E. 49). But this is not an inflexible rule, where the context makes it clear that the suit was brought by or against him in his representative character, although the word “as” is not employed for that purpose. In Jennings v. Wright & Co., 54 Ga. 537, a suit was brought in the statutory short form against the administrator of a named decedent, but the petition did not expressly state that it was against him as administrator. It alleged that the defendant was indebted to the plaintiff on a note, of which a copy was attached. The copy annexed was that of a joint note of the decedent and another. It was held that the suit was against the defendant, not individually, but in his representative capacity. In the opinion, Bleckley, J., said: “Let the declaration and the copy note, in this ease, be read together in a spirit of candor, and there is not one man in a thousand who would be likely to misunderstand them. To miss the meaning the reader would have to he a man of much learning, and one whom much learning hath made mad.”
In Tinsley v. Lee, 51 Ga. 482, a decree for money was rendered against a defendant, with the words “executor” of a specified person added to his name. The execution commanded that the money be realized of the property of the defendant, naming him, and adding the words “executor” of a certain person; and nothing else appeared. Such decree and execution were held to be against the defendant as an individual, and not in his representative character. But if it appears from the face of an execution that it is against an administrator, and to he levied upon the property of the de
In Anderson v. Foster, 105 Ga. 563 (32 S. E. 373), suit was brought by Anderson, administrator of A. W. Foster, against F. C. Foster, executor of A. G. Foster, deceased, and against E. W. Butler, executor of Joshua Hill. In beginning the opinion Mr. Justice Fish said: ' “This case, as the record shows, was treated in the trial below, by all the parties thereto and the judge, as an action against F. C. Foster and E. WM Butler as the executors respectively of the wills of A. G. Foster and Joshua Hill, deceased. It was argued before this court by both sides upon this theory. Whatever, therefore, may have been the true legal character of the petition, this court, under the circumstances, will consider it as against the defendants in their representative capacities.” Laverty v. Woodward, 16 Iowa, 1; Keyes v. Minneapolis & St. L. R. Co., 36 Minn. 290 (30 N. W. 888).
In Braswell v. Hicks, 106 Ga. 791 (32 S. E. 861), it was held that where in defense to an action brought against one as an individual he files an answer which practically, though not in express terms, makes him in his character as administrator of a deceased person a defendant to the action, and-defends in the right of his intestate’s estate, the estate is concluded by the judgment rendered in that action. Lamar v. Lamar, 118 Ga. 684, 688, 689 (45 S. E. 498); Emmett & Co. v. Delete, 132 Ga. 593 (64 S. E. 682); Daniel v. Gum, 45 S. W. 468; Russell v. Mallon, 38 Cal. 259.
Tested by these principles, how stands this case? A suit to recover land was filed against Chichester and “W. M. Wadley, executor of W. O. Wadley, dec’d.” Both defendants answered. According to a stipulation filed later by counsel in the Supreme Court, a plea of prescription was filed by “the defendant, W. M. Wadley, as executor of W. O. Wadley, deceased.” He thus put the title of the estate in issue, if it was not already so. Whether he introduced evidence to sustain this plea is immaterial. The case having been lost by the defendants in the trial court, it was brought to this court. The bill of exceptions stated that “W. M. Wadley, as executor of W. 0. Wadley, deceased,” and Chichester excepted. The supersedeas bond was joined in by Wadley as executor of the decedent. He thus placed in issue the title of the decedent, and litigated in the superior court and in this court in his representative capacity. He
When the former ease was in this court, counsel for all parties signed and filed the stipulation above mentioned, as a basis of procedure. It became a part of the record. In the present petition there is no allegation that their conduct was wrongful. It is not .an admission in a case between different parties. It is a solemn agreement between these parties in a litigation over the same land. The present plaintiff has had his day in court. He must abide the result as to the land.
2. If the judgment, so far as it is for money, and the execution are de bonis propriis and not de bonis testatoris, this can be met by affidavit of illegality, and does not require an injunction. Doubtless such an irregularity, if it exists, is curable by amendment. Jennings v. Wright & Co., 54 Ga. 538 (3), supra.
The interlocutory injunction was properly refused.
Judgment affirmed.