Carmichael v. Mobley
| Decision Date | 24 November 1934 |
| Docket Number | 23914. |
| Citation | 178 S.E. 418,50 Ga.App. 574 |
| Parties | CARMICHAEL et al. v. MOBLEY. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 2, 1935.
Syllabus by Editorial Staff.
Where exception is taken to final judgment as being erroneous in itself, assignment should specifically set forth error complained of, but, where decision complained of precedes final judgment and is specifically made subject of exception and of proper assignment, and final judgment is excepted to because of antecedent decision, general exception to final judgment and exception to and specific assignment of error on antecedent ruling are sufficient.
Where final bill of exceptions contained sufficient assignments of error on antecedent rulings, but assignment on final judgment was merely that it was contrary to law, writ of error could not be dismissed, but correctness of final judgment itself in independent matters of law and fact could not be considered.
Power of superintendent of banks to make assessment on stockholder give notice, and issue execution for amount due was not suspended by stockholder's death, and could be exercised irrespective of rights and exemptions of executors administrators, or beneficiaries of estates in other proceedings (Civ. Code 1926, §§ 2366 (71), 2366 (140); Civ. Code 1910, §§ 3892, 4015).
In execution proceeding against bank stockholder's estate on statutory assessment, record held not to show whether stockholder's will had been probated in common form before execution was issued, and affidavit of illegality was filed by person named executor in will, hence execution was legal, although issued before qualification of executor, affiant presumably having acted within his powers in preserving estate before qualification and having ratified filing of original affidavit by filing amendment thereto (Civ. Code 1910, §§ 3855, 3856, 3862, 3868, 3883, 3935-3937; Civ. Code 1926, § 2366 (71).
In execution proceeding against bank stockholder's estate, ground of affidavit of illegality stating that superintendent of banks did not determine necessity of assessment and amount necessary to be levied held demurrable, in view of presumption that superintendent did his duty and recital in execution that assessment was made for amount stated under authority of statute (Civ. Code 1926, § 2366 (71).
Signing and issuance of execution against bank stockholders are clerical or ministerial acts which superintendent of banks may delegate to assistant superintendent or agent (Civ. Code 1926, § 2366 (1) et seq.).
Affidavit of illegality is remedy which lies only in favor of defendants in execution, and will be dismissed where filed by persons who are not defendants.
In execution proceeding by superintendent of banks against bank stockholder's estate, amendment to affidavit of illegality, filed by person named executor in stockholder's will "as an heir at law," was properly stricken (Civ. Code 1926,§ 2366 (1) et seq.).
Execution issued by superintendent of banks on statutory assessment held not illegal because issued more than six months after taking over of bank, in view of failure of statute to limit time for issuance of executions (Civ. Code 1926,§ 2366 (71).
Exception to judge's failure to allow additional time to amend affidavit of illegality showed no error, where it appeared that grounds of defense and demurrers ruled on dealt with merits, and neither exception nor pleadings indicated wherein amendment altering grounds already filed would have rendered them valid, and record failed to show that defendant made or offered sworn statement that he did not know of ground offered by amendment when original affidavit was filed (Civ. Code 1910, § 5704).
Error from Superior Court, Butts County; G. Ogden Persons, Judge.
Execution proceeding by A. B. Mobley, Superintendent, etc., against R. J. Carmichael, executor, and others. To review the judgment, defendants in execution bring error.
Affirmed.
Joel B. Mallet and C. L. Redman, both of Jackson, for plaintiffs in error.
C. N. Davie and J. F. Kemp, both of Atlanta, and H. J. Kennedy, of Barnesville, for defendant in error.
Syllabus OPINION.
1. "If exception be taken to a final judgment as being erroneous in itself, the assignment of error should specifically set forth the error or errors in it which are complained of"; but, if the ruling or decision complained of is one preceding the final judgment, and it is specially made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, with regard to the antecedent ruling, to give the reviewing court jurisdiction. Lyndon v. Ga. Ry. & Electric Co., 129 Ga. 353 (2, 3), 58 S.E. 1047; Hennessee v. Jennings, 48 Ga.App. 188, 189, 172 S.E. 583. Thus, where, in a trial before a judge without a jury, the final bill of exceptions contains sufficient assignments of error on antecedent rulings of the court, but merely a general assignment of error on the final judgment as "contrary to law" without specifying the error, the assignments with regard to the antecedent rulings being sufficient for a consideration of such alleged antecedent errors, a motion to dismiss the writ of error will be denied; but the correctness or incorrectness of the final judgment itself in independent matters of law and fact, as argued in the briefs, cannot be considered. See Fidelity & Deposit Co. v. Anderson, 102 Ga. 551, 28 S.E. 382; Williams v. Visualizit, Inc., 177 Ga. 832, 833, 171 S.E. 563.
2. Construing the provision in the act of 1919 (Ga. Laws 1919, pp. 135, 189, art. 18, § 2, Park's Civ. Code Supp. 1922, § 2279 (b), Michie's Civ. Code, § 2366 (140), that "persons holding stock as executors, administrators, guardians, or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested * * * would be, if living and competent to act and hold the stock in his own name," the Supreme Court, in Mobley v. Personius, 172 Ga. 261 (3), 265, 157 S.E. 294, 296, has held that, since a decedent, if living, would have been subject to assessment by the state superintendent of banks, the issuance of an execution against him, and its payment in full, and since under the statute "the manner and extent of the liability of * * * the decedent is the same as it would have been if [he] had not died," the enforcement of the execution would not be "postponed to the expiration of twelve months from the appointment of [his] administrators"; and that "this may be a drastic provision, but it was competent for the Legislature to make it, carrying out a public policy of protecting depositors of a bank to the fullest extent." Accordingly, irrespective of the rights and exemptions of executors, administrators, or beneficiaries of estates, in other proceedings (see Civil Code 1910, §§ 4015, 3892; Ayer v. Chapman, 146 Ga. 608, 91 S.E. 548), the power of the superintendent of banks to make the assessment, give notice, and issue execution for the amount due according to the stock held by a stockholder of a bank, proceeding under the act of 1919, article 7, § 20, as amended (Michie's Code, § 2366 (71), was not suspended or impeded by the death of the stockholder.
3. "Every person having possession of a will must file the same with the ordinary of the county having jurisdiction." Civil Code § 3862. "The executor must offer the will for probate as soon as practicable after the death of the testator, and must qualify, unless restrained by the will, within twelve months after the same is admitted to record." Civil Code § 3868. "So soon as the probate of the will is made in common form, in vacation, and before it is admitted to record, and before qualification, the executor named therein may exercise all the powers of a temporary administrator as to the collecting and preserving the estate." Civil Code § 3883. The powers of an executor, after probate in common form, as to preservation of the estate are thus analogous to those of a temporary administrator under sections 3935-3937 (see Garland v. Milling, 6 Ga. 310, 316), who, while he cannot sue to recover land not in his possession (Ward v. McDonald, 135 Ga. 515, 69 S.E. 817; Doris v. Story, 122 Ga. 611, 50 S.E. 348), yet, where land is already in his possession, has the power and duty in protecting the estate to represent it in an action affecting such possession, and "may file an 'illegality' to an execution proceeding to sell the intestate's lands." Reese v. Burts, 39 Ga. 565 (1); Barfield v. Hartley, 108 Ga. 435 (2), 33 S.E. 1010; Banks v. Walker, 112 Ga. 545, 37 S.E. 866. The record in the instant case failing to indicate whether or not the will of the deceased stockholder, against whom the assessment by the state bank superintendent had been made, was offered for probate before the issuance of the execution and before the filing of the original affidavit of illegality thereto by the person who later qualified as executor, but such affidavit stating that "he is an heir at law of the [deceased] and interested in the administration of her estate, having been named as executor of the last will and testament of the [deceased]," and the entry of levy by the sheriff reciting that the land levied upon was "in possession of [the executor]" and was "pointed out by [the executor]," and the execution itself not being...
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