Clark v. Flannery

• Decision Date: 13 July 1896
• Citation: 99 Ga. 239,25 S.E. 312
• Parties: CLARK. v. FLANNERY et al.
• Court: Georgia Supreme Court

99 Ga. 239

25 S.E. 312

CLARK.

v.FLANNERY et al.

Supreme Court of Georgia.

July 13, 1896.

Res Judicata—Action against Trustee—Rights of Beneficiaries.

1. Where, in an action against a trustee, the declaration contained allegations showing that the debt sued upon was a debt of the trust estate, binding upon it, and lawfully collectible by the sale of certain described property, and judg-merit was rendered accordingly, this judgment, though the trustee may have neglected to make the proper defense to the action, was, nevertheless, conclusive upon the cestuis que trustent represented by the trustee; and an equitable petition filed in their behalf by a next friend, for the purpose of setting the judgment aside, was properly dismissed on demurrer. If the trustee was unfaithful to his trust in improperly allowing the judgment to be rendered, he and his sureties, if any, are liable to the beneficiaries thus injured.

2. The law of this case was practically settled by the decision of this court therein at the March term, 1895 (22 S. E. 386, 96 Ga. 782).

(Syllabus by the Court.)

Error from superior court, Pulaski county; C. C. Smith, Judge.

The following is the official report:

Clark, as next friend of the seven minor children of J. A. D. Coley, brought his petition against John Plannery & Co. and the sheriff of Pulaski county, praying that they be enjoined from selling certain land under an execution founded on a judgment hereafter mentioned, and that said judgment be set aside and declared void, or so reformed as not to interfere with the property levied on, and for general relief. There was a hearing for interlocutory injunction, and the same was denied, which ruling was affirmed by the supreme court. 96 Ga. 782, 22 S. E. 386. Afterwards the cause was heard on demurrer to the petition; and this demurrer was sustained, and the petition dismissed. Plaintiff brings error. Affirmed.

The grounds of the demurrer were, in brief: (1) No equity; (2) res adjudicata; (3) too long delay in seeking equitable intervention; (4) insufficient ground for interference with the judgment. It appears from the record that the land in question was devised by the will of Alatia Coley, a brother of J. A. D. Coley, to J. A. D. Coley, in trust for the children named In the petition, for and during the natural life of J. A. D. Coley, and then to vest in and become the property of the children, or such of them as may be living at such time. The will was dated December 22, 1885, and was probated and admitted to record on January 4, 1886, On January 17, 1894, John Plannery & Co. brought suits in Pulaski county court upon certain promissory notes signed by J. A. D. Coley, trustee. Their petition alleged that J. A. D. Coley, as trustee for his children, naming them, was indebted to plaintiffs in the sums sued for upon the note, a copy of which was set out; that said note was given for money furnished by the plaintiffs for the trust estate for which Coley was trustee, which...