170 Ga. 675 | Ga. | 1930
J. O. Chenault died in 1922. His wife, Mrs. Alline Chenault, and A. S. Hawes were appointed administrators immediately after his death. In January, 1923, A. S. Hawes resigned, and T. J. Barksdale and C. B. Ramsey were appointed
No annual returns were filed by the administrators, and no return of any kind was made by them until 1927, when a single return was made to the ordinary, and they filed with it a petition for discharge, alleging that they had completely administered the estate. At the time of the death of J. O. Chenault the plaintiffs, Summers Buggy Co., Wingo-Ellett-Crump Shoe Co., and Thornton Grocery Co., had obtained judgments against him. After the appointment of the administrators the plaintiffs Wessel-Duval & Co. and Swift & Co. either made the administrators parties to pending suits or filed suits against them. The administrators filed no pleas of plene administravit, but judgments were taken against them de bonis testatoris. Plaintiffs allege that they had no actual knowledge of the discharge of the administrators until
Defendants filed a general demurrer to only those portions of the petition which referred to the year’s support. Plaintiffs filed special and general demurrers to defendants’ answer, raising the question that defendants do not, in response to the prayers of the petition, make any accounting of the assets coming into their hands; and that the answer of defendants is not sufficient in law to repel the charge that they have been guilty of a devastavit. On the hearing the court sustained the demurrer of defendants, and overruled the demurrers of plaintiffs. Exceptions pendente lite to these rulings were filed. After evidence was offered, a nonsuit was granted, and the plaintiffs excepted.
To so much of the petition in this case as seeks to set aside
There are numerous exceptions assigning error upon various rulings of the court excluding evidence offered by the plaintiffs. The evidence here referred to related to alleged facts and circumstances 'which plaintiffs in error contend show fraud. It is a well-established mle that a party need not plead his evidence; but where a party relies upon facts and transactions to establish his allegations of fraud against liis adversary, those facts should be alleged. Fraud in this case is the basis upon which the plaintiffs seek to stand in their attempt to set aside a judgment of the court of ordinary discharging the administrators. Mere general allegations of fraud would not be sufficient; and if specific acts, claimed to amount to fraud, are relied upon, they should be pleaded, so that the defendant would have an opportunity to meet and repel the attacks.. Applying that ruling, the court did not err in excluding the evidence, upon the exclusion of which error is assigned in the 1st, 3d, 5th, 6th, 7th, 8th, 9th, 10th, and 11th grounds of alleged error, as set forth in the bill of exceptions. In this connection see Coleman v. Coleman, 113 Ga. 149 (38 S. E. 400), where it was held: “In order to authorize a court of equity to entertain a petition to set aside a judgment for fraud, the acts claimed to constitute the fraud must be clearly and specifically alleged; and mere general averments that the judgment was obtained by misrepresentation, concealment, and fraud are not sufficient.” And in Dorsey v. Dorsey, 27 Ga. App. 458 (108 S. E. 807), it was said: “In a suit on an administrator’s bond, where the plaintiff alleges the administrator’s discharge, in order to escape the effect of that judgment on the ground that it was procured by fraud he must further .allege the facts upon which the charge of fraud is based.” See also Knox v. Raynor, 146 Ga. 146 (2) (90 S. E. 853). The other evidence offered by plaintiffs and excluded b3r the court could not have affected the result in this case, even if it had been admitted. The fact that Mrs. Chenault and A. S. Hawes had been appointed administrators of J. O. Chenault was admitted in the pleadings of the defendants, as also was the fact that Hawes had resigned as administrator.
The plaintiffs failed to show ground for setting aside the judgment of the court of ordinary discharging the administrators; and haying so failed, they were not entitled to an account
What is said above covers in substance the questions made by the various exceptions contained in the record; and it follows that the court did not err in overruling the motion made by the plaintiffs for a judgment against the defendants, and in granting the motion for a nonsuit.
■Judgment affirmed.