109 Ga. 217 | Ga. | 1900
This was an application, by petition, to the court of ordinary of Greene county, to amend a judgment of that court. The petition to amend was filed on July 25,1899. A demurrer was filed to the petition, the grounds of which were, that the petition showed that the judgment was “null android in law,” as more than ten years had elapsed since execution issued upon the saíne, and there was “no entry or levy on said fi. fa. within ten years next preceding said application ; ” and that the plaintiffs were “guilty of laches.” The case was appealed to the superior court, where the demurrer was sustained and the petition dismissed. In the bill of exceptions this ruling of the court is assigned for error. From the petition it appears that the judgment sought to be amended was rendered upon a citation, at the instance of the legatees under the will of Thomas Merritt, to James Merritt, the executor of such will, to appear for a settlement of his accounts as such executor. This judgment was, as appears from the copy of the record from the court of ordinary, as follows: “Whereupon it is considered and adjudged by the court, upon a calculation and settlement of the accounts of said James Merritt, executor of the estate of Thomas Merritt, that the said James Merritt, executor as aforesaid, is indebted to Susan E. Merritt, Marietta M. Merritt, Martha Clements, Sarah V. Merritt, and Ellis Clements, guardian ad litem for Alice Merritt and Antoinette Merritt, in the sum of one thousand and fifty-five 98/100 dollars ($1,055.98), and that execution issue for that amount when called for. Judgment rendered this December 9th, 1878. Joel F. Thornton, Ordinary.” The amendment prayed for and insisted upon was to add at the end of the judgment the words, “to be levied of the goods, lands, and tenements of the testator in the hands of said James Merritt to be administered.” The petition also prayed that A. L. Williams, as administrator of the estates of two of the parties in whose favor the judgment was rendered, should be made a party to the. judgment “in the stead of his deceased intestates,” and that “the name of Ellis Clements be stricken from said judgment as guardian ad litem.” But it is stated by counsel for the plaintiffs in error that these prayers were abandoned at the trial in the court below, and they are not insisted upon here.
We do not think there is any merit in the ground of the demurrer which alleges that the plaintiffs have been guilty of laches. Notwithstanding the long period of time which has
Judgment reversed.