Cobb v. Wise

• Decision Date: 11 September 1883
• Parties: COBB v. WISE, trustee, et al.
• Court: Georgia Supreme Court

71 Ga. 103

COBB v. WISE, trustee, et al.

Supreme Court of Georgia.

September 11, 1883

September Term, 1883.

A bill was filed to call one to account both as trustee and administrator; it alleged that another was surety upon his bond as trustee, and impliedly and indistinctly (if at all) that he was also surety on the administration bond; he was joined in the suit, and subpœ na was prayed and issued against both him and the principal; they answered the bill jointly, and the surety set up no special defence growing out of the relation he sustained to the other defendant; the answer was silent as to the suretyship The jury found a specified sum against the principal as trustee and another sum against him as administrator The chancellor entered a decree against him severally for the amounts so found; and also against the other defendant as his surety in both capacities:

Held, that such decree was error and must be set aside. While verdicts are to be given a reasonable intendment, and may be construed where the jury have expressed their meaning in an informal manner, the court cannot supply substantial omissions.

( a. ) The decree as to the surety is set aside; in other respects it is affirmed; both parties having leave to amend their pleadings, so as to make and determine distinctly the issue of his liability.

Verdict. Decree. Practice in Superior Court, Practice in Supreme Court. Before Judge HUTCHINS. Oconee Superior Court. January Term, 1883.

Reported in the decision.

S. P THURMOND; H. D. MCDANIEL; J. R. LYLE, for plaintiff in error.

A. S ERWIN; POPE BARROW; A. J. COBB, for defendants.

HALL Justice.

Florine Wise and her husband and trustee brought this bill in equity to hold to account her former trustee, William D. Cobb, who succeeded in this trust her first husband, Henry W. Cobb, upon whose estate the said William D. Cobb also administered; the bill also sought an account of Henry W. Cobb's administration of the trust at the hands of his said administrator. Azariah P. Cobb, who was claimed to be the surety of William D. Cobb as trustee and also as administrator, was joined in the suit with the said William D.; process was prayed and issued against both of them, and both were served. They answered the bill jointly, and Azariah P. set up no special defence growing out of the relation he sustained to the other defendant. The bill very distinctly sets forth the fact that he was surety upon the trustee's bond, but only impliedly and indistinctly, if at all, charged him as surety upon the administrator's bond of the said William D. Copies of the bonds are not appended as exhibits, nor are they otherwise described in the pleadings. The answer is silent as to the suretyship.

The jury on the trial of the case returned a verdict against William D. Cobb for the sum found to be due from him as complainant's trustee; and also for the amount due from Henry W. Cobb, deceased, her former...