Bishop v. Pinson
| Decision Date | 15 December 1924 |
| Docket Number | 15630. |
| Parties | BISHOP ET AL. v. PINSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
It is true that, where a creditor of an estate has recovered against the administrator a judgment de bonis testatoris and de bonis propriis, he cannot for the same cause of action recover another judgment de bonis propriis against the administrator upon his bond, and that, where a suit on such bond against an administrator and his sureties is commenced in the county of the residence of the administrator, and all the sureties reside in another county, the court has no jurisdiction of the sureties; and that, where all of these facts appear upon the face of the petition, it will be subject to be dismissed on the motion of the sureties, if jurisdiction of their person has not been waived; but these principles are inapplicable to the case sub judice, wherein the petition showed no prior judgment de bonis propriis against the administrator, but only a judgment de bonis testatoris. The instant action was to recover for the first time a personal judgment against the administrator, and his sureties were suable upon the bond with him in the county of the administrator. The rule is applicable that joint obligors may be sued together in the county of the residence of either. The motion of the sureties to dismiss the petition for want of jurisdiction was properly overruled.
Where there is a plea in abatement upon the ground that the suit is a renewal of a dismissed action between the same parties upon the same cause of action, and that the costs were not paid nor an affidavit in forma pauperis filed in lieu of costs before its recommencement, it is incumbent upon the defendant, in order to sustain the plea, to show, not only the nonpayment of the costs which accrued upon the first action, but also that the new suit is substantially identical with the old suit, both as to parties and causes of action. Such burden is not carried merely by introducing in evidence a docket entry showing a suit between the same parties but nothing as to the cause of action.
An alleged creditor of an estate, suing upon the administrator's bond, makes out a conclusive case against the administrator, and a prima facie case against the sureties by proof of the rendition of a judgment in his favor against the administrator, upon a liability of the deceased with a return of nulla bona by the sheriff or other officer authorized to make the same upon the execution issued thereon. Such prima facie case having been made out against the sureties by the plaintiff in the present action, and having never been rebutted, a verdict was demanded in favor of the plaintiff, and the court did not err in so directing.
Error from Superior Court, Gordon County; M. C. Tarver, Judge.
Action by M. L. Pinson against Jim Bishop and others. Judgment for plaintiff, and defendants bring error. Affirmed.
W. E Mann and W. Gordon Mann, both of Dalton, for plaintiffs in error.
Joe M Lang, of Calhoun, for defendant in error.
1. This was an action by M. L. Pinson against R. L. Jones, principal, and Henry Bishop and Jim Bishop, as sureties, upon the bond of Jones as administrator of the estate of V. W. Bishop. It was commenced in a justice's court of Gordon county on November 7, 1923, but by consent was appealed to the superior court. Attached to the summons was a complaint in which the plaintiff alleged that he had procured "a judgment and execution against R. L. Jones as administrator," "which judgment and execution is against the property of the said V. W. Bishop, deceased, in the hands of the said R. L. Jones, as administrator," and that upon the fi. fa. an entry of nulla bona had been made by the sheriff of Gordon county. Annexed to the complaint was a copy of the fi. fa., in form as follows:
"State of Georgia, Gordon County.
M. L. Pinson, Plaintiff, v. R. L. Jones, as Adm'r of Estate of V. W. Bishop, Deceased, Defendant.
To Any Lawful Constable of Said County--Greeting:
You are hereby commanded to levy on a sufficiency of the property of the defendant above named and of the property of V. W. Bishop, deceased, in hands of R. L. Jones, as administrator, to make the sum of $76.94 principal, $8.25 interest to date of judgment at 7 per cent. per annum, and all future interest at the same rate, ______ dollars for attorney's fees, $3.95 costs of this suit, and 35 cents for this writ; which several sums were adjudged against the defendant above named upon an account at the justice court held in and for the 980th district, G. M., on October 19, 1923, in favor of plaintiff above named. And have you this writ at the November term, 1923, of said court, to be held on the third Friday in November, 1923, to render an account of your actings and doings thereon. Herein fail not. Given under my hand and seal, this November 1, 1923, G. E. Whelchel, J. P. 980th District, G. M. [ Seal.]."
The administrator Jones was a resident of Gordon county, and the sureties were residents of Murray county. These facts appeared upon the face of the petition.
The defendant sureties pleaded to the merits with a reservation of the right to move to dismiss the suit for want of jurisdiction. Upon the call of the case for trial they made an oral motion to dismiss, upon the ground that it appeared by the petition or summons that the plaintiff had already recovered against the administrator a judgment de bonis propriis and could not proceed for a second personal judgment against him upon the bond, and inasmuch, therefore, as a cause of action was not set forth against the administrator, the court had no jurisdiction over the sureties who resided in another county. The motion was overruled, and this judgment is assigned as error.
The plaintiffs in error rely upon the decision of the Supreme Court in Ross v. Battle, 117 Ga. 877, 45 S.E. 252, in which it was held that, where heirs at law of an estate have recovered against administrators judgments de bonis testatoris and de bonis propriis, they cannot for the same cause of action recover another judgment de bonis propriis against the administrators upon their bond, and that, where suit on such bond, against the administrators and the sureties, is commenced in the court of the county of the residence of one of the administrators, against whom no recovery can be had, and all the sureties reside in other counties, the court has no jurisdiction of the sureties, and the action should be dismissed on demurrer.
If the counsel are right in their contention that the execution attached to the summons discloses that a prior judgment had been obtained against the administrator de bonis propriis the court undoubtedly committed error in overruling the motion to dismiss. Ruis v. Lothridge, 149 Ga. 474 (2), 100 S.E. 635; Cox v. Potts, 67 Ga. 521; Robertson v. Tallulah Falls Railway Co., 29 Ga.App. 530 (4), 116 S.E. 65. We are unable, however, to agree that the execution is susceptible of such construction. It is entitled against "R. L. Jones, as adm'r of estate of V. W. Bishop, deceased, defendant." Hence the "defendant above named," as referred to in the body of the execution, was Jones in his capacity as administrator. While the language which directed that the levy be made "on a sufficiency of the property of the defendant above named and of the property of V. W. Bishop, deceased, in hands of R. L. Jones, as administrator," would appear tautological, it nevertheless appears from an examination of the fi. fa. as a whole that the sheriff is commanded to make a levy...
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