Bishop v. Pinson, (No. 15630.)
| Decision Date | 15 December 1924 |
| Docket Number | (No. 15630.) |
| Citation | 33 Ga.App. 269,125 S.E. 880 |
| Parties | BISHOP et al. v. PINSON. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
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.
BELL, J. 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:
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. Lothrldge, 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 ft. fa. as a whole that the sheriff is commanded to make a levy up on the property only of the administrator's intestate. See Fry v. Shehee, 55 Ga. 208 (11); Wadley v. Oertel, 140 Ga. 326 (1), 78 S. E. 912; Jennings v. Wright, 54 Ga. 537 (1). The presumption is that the judgment was to the same effect. Jones v. McCleod, 61 Ga. 602 (1).
It would seem that, if the judgment had been both de bonis testatoris and de bonis propriis, the execution should have commanded the levy to be made, first, upon the property of the deceased, "if to be found, and if not to be found, then to be levied of the personal goods and chattels, lands and tenements of the defendant." Civil Code 1910, § 4088.
In view of the language of the execution, it does not come within the rulings of any of the following cases: Forrester v. Tift, 84 Ga. 595, 10 S. E. 1015; Freeman v. Bin-swanger, 57 Ga. 159 (1); Lemon v. Thaxton, 59 Ga. 706; Beall v. Hutcheson, 131 Ga. 66, 61 S. E. 1125; Stephens v. City of Atlanta, 119 Ga. 666 (1), 46 S. E. 872; Wright v. Scott, 145 Ga. 514, 89 S. E. 426.
We hold, therefore, that the suit did not disclose a prior personal judgment in favor of the plaintiff against the administrator. A suit may be brought on the bond against an administrator and his sureties without first obtaining a judgment against either in his individual or representative capacity. Bailey v. McAlpin, 122 Ga. 616 (6), 50 S. E. 388; Civil Code 1910, § 3974. Joint obligors may be sued in the county of the residence of either. Civil Code 1910, § 6541.
The decision of the Supreme Court in Ross v. Battle is inapplicable. The motion to dismiss was properly overruled.
2. The defendant sureties filed a plea in abatement, upon the ground that the plaintiff had previously instituted and dismissed a suit against the same parti...
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