Coney v. Horne

• Decision Date: 30 April 1894
• Citation: 93 Ga. 723,20 S.E. 213
• Parties: CONEY. v. HORNE.
• Court: Georgia Supreme Court

20 S.E. 213

93 Ga. 723

CONEY.

v.HORNE.

Supreme Court of Georgia.

April 30, 1894.

Limitations—Suit against Administratrix—Accounting— Evidence — Sufficiency of Declaration—Residence of Defendant.

1. A declaration against the administratrix of a decedent for the recovery of money alleged to have been received by the defendant's intestate, as trustee for the plaintiff's intestate, alleging that the former intestate was trustee for the latter, and as such managed her business and collected rents due to her, etc., specifying amounts, sets forth a cause of action, and is not barred by the statute of limitations if filed within ten years from the time the plaintiff's intestate had the right to sue, with the addition of one year for the time during which the defendant's intestate was by statute exempt from suit. It not appearing upon the face of the declaration that the plaintiff's intestate became of age, or that the alleged trust ceased to be active more than eleven years before the suit was brought, the declaration was not demurrable on the ground that the action was commenced too late.

2. The suit was not founded on the memoranda or writings set forth in the declaration, but upon a claim for accounting touching an alleged trust, and these papers were alleged as matter of evidence or inducement. Consequently it was immaterial whether or not they constituted a cause of action in and of themselves.

3. The demurrer on the ground that the declaration failed to allege that the defendant was of the county was sustainable, as the omitted allegation was necessary to show jurisdiction over the person. For this defect the judgment dismissing the action is affirmed, but with leave to reinstate if the plaintiff below will amend by supplying this allegation before the remittitur from this court is entered on the minutes in the court below.

(Syllabus by the Court.)

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

Action by Mrs. Low Coney, administratrix, against Mrs. E. Home, administratrix. Judgment was rendered for defendant, and plaintiff brings error. Affirmed.

L. C. Ryan, for plaintiff in error.

W. L. Grice, for defendant in error.

LUMPKIN, J. The plaintiff, Mrs. Coney, as administratrix of Miss Roberta N. Taylor, deceased, brought an action against Mrs. Elmira Taylor (who, during the pendency of the action, married O. A. Horne), as administratrix of Dr. A. R. Taylor, deceased. The declaration alleges that the defendant's intestate was the trustee of the plaintiff's intestate while they were in life, and that, as such trustee, he managed her business, and collected rents due to her. It sets out two writings, of which the following are copies:

"August 8th, 1878. I this day become responsible to Roberta N. Taylor, or her heirs, for the sum of $595.00, execution against T. L. Taylor. [Signed] A. R. Taylor. Witness: C. R. Coney."

"Nov. 20, 1878. Due Roberta from me, $675.00, for rents collected from H. H. Whitfield. [Signed] A. R. Taylor, Trustee R. N. Taylor."

The declaration further alleges, in substance, that Dr. Taylor received the specific amounts mentioned in these papers as trustee for the plaintiffs intestate, and prays a recovery of the same. It appears that at the date of the first of these instruments Miss Taylor was of age, but it does not appear how long before that time she had reached her majority, or when the alleged trust ceased to be active. The defendant demurred to the declaration on various grounds, only two of which require notice. One of these was that the declaration on its face did not show any liability on the part of the defendant to the plaintiff, and...