Bower v. Thomas

• Decision Date: 03 October 1882
• Citation: 69 Ga. 47
• Parties: BOWER et al., administrators, v. THOMAS, administrator, and vice versa.
• Court: Georgia Supreme Court

69 Ga. 47

BOWER et al., administrators, v. THOMAS, administrator, and vice versa.

Supreme Court of Georgia.

October 3, 1882

September Term, 1882.

1. While a plaintiff is entitled to recover in a suit on notes against defendants who make no defence, yet where there was a suit against several defendants on promissory notes, one of whom only defended, a verdict was rendered for the defendants, and only the resisting defendant was brought before this court by writ of error, the decision must rest on the rights of the parties here, and a reversal cannot be had on account of failure to recover against others.

2. While generally the beginning of a suit is the filing of the declaration therein, and amendments properly made relate back to the date of filing, yet this is applicable to defendants sued; and where a new and distinct party was added by ex parte amendment, the statute of limitations ran as to the cause of action against him up to the time of service on him.

( a. ) For a suit against one as executor of an estate to be amended by striking the name of this defendant and inserting the name of another as administrator of the same estate, would seem to be adding a new party, and improper.

3. Though a new party should not be added to a common law action by amendment, yet where such a party has been made and service has been perfected, a motion to set aside the order allowing the amendment comes too late at the second term.

( a. ) Whether the amendment was legal or not, the cause of action was barred as to the party made, before service on him.

4. In a suit against an administrator on notes of his intestate, an heir of the decedent is not an incompetent witness although the holder of the notes may be dead and the suit may be brought by his legal representatives, especially where he had assigned his interest.

Practice in Supreme Court. Parties. Amendment. Statute of Limitations. Administrators and Executors. Practice in Superior Court. Before Judge WARREN. Decatur Superior Court. May Term, 1882.

Bower et al., administrators, brought suit against C. H Thomas, as executor of the estate of J. M. Thomas, deceased and other defendants, on three promissory notes, each for $250.00, dated October 20, 1868, and due respectively one two and three years after date to the intestate of plaintiffs. The suit was begun April 11, 1876. On November 9 1876, C. H. Thomas filed a plea in which he stated that he was not the executor of J. M. Thomas, deceased. At the February adjourned term of court, 1879, the following order was passed:

" On motion of the plaintiff, and it appearing to the court that James M. Thomas is the administrator of Joseph M Thomas, deceased, it is ordered that this declaration be amended by striking out the name of C. H. Thomas, as executor, and inserting in lieu thereof the name of James M. Thomas, as administrator of Joseph M. Thomas, and that time be given and service be perfected on said James M. Thomas, as administrator aforesaid."

J. M. Thomas, administrator, was served March 22, 1881. He pleaded payment and the statute of limitations. It appeared that the statute had been suspended by reason of non-representation on the estate of the payee of the note for about two years, and the case turned upon the question whether the filing of the declaration, or the taking of the order making J. M. Thomas, administrator, a party, suspended the operation of the statute, or whether it ran until service on him.

At the May term of court, 1882, Thomas, administrator, moved to vacate the order making him a party and the entry of service. The motion was based on an allegation of want of authority in the court to grant the order changing parties, and a denial that there was any legal process or service on the movant. The motion was overruled by the court.

None of the defendants appeared or pleaded except Thomas, administrator. It is not material to set out the evidence further than to state that C. H. Thomas, who was a son of J. M. Thomas, Sr., deceased, testified that he and Col. McGill, acting for the estate of Thomas, deceased, made a settlement with Bower touching the notes now sued on.

The jury found for the defendants. Plaintiff moved for a new trial, on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court charged to the effect that neither the filing of the original declaration nor the order amending it suspended the running of the statute of limitations, but held that it continued to run until service on J. M. Thomas, administrator.

(3.) Because the court admitted the evidence of C. H. Thomas as to the settlement made by him, as agent of the administrator, with the payee of the note, who was dead. [It appears that the witness was an heir at law of Thomas, deceased, but that he had parted with his interest as such.]

The motion was overruled, and plaintiffs excepted. Service was acknowledged upon the bill of exceptions only by the attorney of record for the administrator.

Thomas,...