Deller v. Smith

• Decision Date: 19 October 1982
• Docket Number: No. 38494,38494
• Citation: Deller v. Smith, 296 S.E.2d 49, 250 Ga. 157 (Ga. 1982)
• Parties: Karol B. DELLER, Admrx. v. Ellis SMITH, et al.
• Court: Georgia Supreme Court

Page 49

296 S.E.2d 49

250 Ga. 157

Karol B. DELLER, Admrx. v.Ellis SMITH, et al.

No. 38494.

Supreme Court of Georgia.

Oct. 19, 1982.

Rehearing Denied Nov. 2, 1982.

Edward L. Savell, William S. Goodman, Benjamin H. Terry, Atlanta, for Karol B. Deller, Admrx.

E. Lamar Gammage, Miles L. Gammage, Cedartown, for Ellis Smith et al.GREGORY, Justice.

We granted certiorari in this case to review the Court of Appeals's determination of the issues of statutes of limitation, service of process, and failure to join a necessary party in Smith, et al. v. Deller, 161 Ga.App. 112, 288 S.E.2d 825(1982).

On July 25, 1977Suellen Smith was injured in an automobile collision; Aline Broome Burgess was the driver of the other vehicle.On May 29, 1979Aline Burgess died.Allen Roy Burgess and Karol Burgess Deller were appointed temporary administrators of their mother's estate on June 6, 1979.On that same date Suellen Smith filed a personal injury action against Aline Burgess; simultaneously Smith's husband filed an action against Aline Burgess for loss of consortium.These actions were later dismissed.On July 13, 1979 the Smiths filed actions against both temporary administrators; these actions were also dismissed.Deller and Burgess were appointed permanent administrators on August 21, 1979.On February 27, 1980 the Smiths filed this suit for personal injuries and loss of consortium against Deller.

Deller filed motions for judgment on the pleadings in both cases.These motions were converted to motions for summary judgment when matters outside the pleadings were considered by the trial court.Code Ann. § 81A-112(c);Newsome v. City of Union Point, 249 Ga. 434, 291 S.E.2d 712(1982).The issues raised in Deller's motions are those now before this court.The trial court determined that Deller, a non-resident, had been properly served under Code Ann. § 113-1203.1.Further, the trial court found no merit to Deller's contention that the action must be dismissed because Alan Burgess, as co-administrator and a necessary party, had not been joined in the action; the trial court ruled that under Code Ann. § 81A-121, Burgess could be added by amendment at any stage of the action.However, the trial court granted Deller's motion for summary judgment, finding that the applicable statute of limitations had run on both the Smiths' claims.Code Ann. § 3-1004.

The Court of Appeals affirmed the trial court's ruling as to the issues of service of process and failure to join Burgess as an indispensible party, but reversed the trial court's determination that the statutes of limitations had run in both actions filed by the Smiths.

(1)(a)We agree with the Court of Appeals that the statute of limitations had not run in Ellis Smith's suit for loss of consortium, as suit was clearly filed within four years after the right of action accrued.Code Ann. § 3-1004.

(b)We also agree with the Court of Appeals that the two-year statute of limitations in Suellen Smith's personal injury action had not run at the time suit was filed.

Petitioner concedes that the Court of Appeals correctly applied Code Ann. § 3-804 to toll the statute of limitations from the date of Aline Burgess's death on May 29, 1979 until the permanent letters of administration were granted to Burgess and Deller on August 21, 1979.Code Ann. § 3-804 provides in pertinent part, "[t]he time between the death of a person and representation taken upon his estate ... shall not be counted against the creditors of his estate, provided such time does not exceed five years ..."In Baumgartner v. McKinnon, 137 Ga. 165, 73 S.E. 518(1911), this court held that with regard to Code Ann. §§ 3-803and804¹ only the qualification of a permanent administrator constitutes representation upon the estate so as to trigger the revival of a tolled statute of limitations.In determining that the appointment of a temporary administrator does not constitute representation on the estate during which a statute of limitations will run, the court noted that a temporary administrator occupies a unique position in the law."He is appointed to act only until a permanent administrator is appointed, for the purpose of collecting and taking care of the effects of the deceased ..."137 Ga. at 166, 73 S.E. 518;Code Ann. § 113-1207.A temporary administrator is unable to sue for the recovery of land, Grooms, et al. v. Mixon, et al., 150 Ga. 335, 103 S.E. 845(1920), or to distribute the assets of the estate Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861(1943), these being duties which belong solely to the permanent administrator.While a temporary administrator "may sue for the collection of debts or for personal property of the intestate,"Code Ann. § 113-1511, his duties are "principally of a preservative character," to be executed until a permanent administrator is qualified.137 Ga. at 166.Therefore, the court reasoned, to permit the appointment of a temporary administrator to constitute representation on the deceased's estate would place the estate in a vulnerable and inequitable position with regard to Code Ann. §§ 3-803and804.The temporary administrator, "not clothed with the full power of a permanent administrator,"Id., could not effectively pursue many claims in favor of the estate nor adequately represent the estate with regard to many claims against it.Therefore, as the Court of Appeals pointed out, "the appointment of a temporary administrator does not result in representation of the estate for purposes of the running of the statute of limitations either in favor of, or against, the estate."161 Ga.App. at 114, 288 S.E.2d 825.

Petitioner argues, however, that the Court of Appeals erred in holding that the six-month exemption from suit provided by Code Ann. § 113-1526 applies to permanent administrators; petitioner urges that the protection offered by this provision should be instead afforded temporary administrators.Code Ann. § 113-1526 provides, in part, "No suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of six months from his qualification."It is settled that during this period when the estate is exempt from suit, the statute of limitations on any claim against the estate will be tolled.Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15(1972);Hawes v. Glover, 126 Ga. 305, 55 S.E. 62(1906).

If, under the facts before us, the six-month exemption commences at the appointment of the temporary administrator, Suellen Smith's suit would have been untimely.²If the six-month exemption begins at the time a permanent administrator is qualified, as the Court of Appeals held, Smith's suit was timely.

On February 16, 1799the legislature first authorized the appointment of a temporary administrator.³This Act, "to carry into effect the sixth section of the third article of the [1798]Constitution," provided "that all applications for letters of administration shall be made to the clerk of such court of ordinary, who shall give notice thereof in one of the public Gazettes of this State, and by advertisement at the courthouse of such county at least THIRTY days before the sitting of the said court of ordinary, and such clerk may at his discretion, grant letters to collect and take care of the effects of the deceased, until the meetings of such court ... [and] the person obtaining such temporary letters of administration shall give bond and security for the faithful performance of the trust reposed in such person ..."Acts, 1799, pp. 72-3.[Emphasis supplied].

It appears to us that it was the intent of the legislature to provide for the appointment of a temporary administrator in those cases where it was necessary to "collect and take care of the effects" of the deceased, ⁴ only until such time as the permanent administrator could be qualified.Subsequent legislative enactments and the judicial decisions interpreting them accorded the temporary administrator limited powers commensurate to his brief tenure.As noted above, a temporary administrator may sue for the collection of debts or for the personal property of the intestate.Code Ann. § 113-1511.He may not, however, pay the debts of the estate, Furr v. Jordan, 196 Ga. 862, 874, 27 S.E.2d 861(1943);Broderick et al. v. Reid, et al., 164 Ga. 474, 139 S.E. 18(1927);Young v. Freeman, 153 Ga. 827, 113 S.E. 204(1922), nor may he interfere with the realty in the estate except to preserve it.Furr v. Jordan, supra.The temporary administrator may carry out existing contracts of the deceased or carry on the business of the deceased.Code Ann. § 113-1527.He may not, however, distribute any assets of the estate.Furr v. Jordan, supra.As Baumgartner carefully pointed out, the temporary administrator's duties are largely of a "preservative nature."137 Ga. at 166, 73 S.E. 518.Where the legislature intended to charge a temporary administrator with a given responsibility, specific reference is made in the Code to his capacity as a temporary administrator, thus clearly differentiating from a permanent administrator.See, e.g., Code Ann. § 113-1207, § 113-1208, § 113-1511, § 113-1221, § 113-1527, and§ 113-1240.Other code provisions regarding duties owed the estate do not categorize the administrator as "temporary" or "permanent," but simply classify him as an "administrator."Certain of these provisions clearly apply to a permanent administrator.For example, Code Ann. § 113-907 states that "[u]pon the appointment of an administrator, the right to the possession of the whole estate is in him ..."Only the permanent administrator has a right to the entire estate; the temporary administrator has only the right to the personalty.Likewise, Code Ann. § 113-908 provides that "the administrator may recover any part of the estate from the heirs at law ..." including lands under certain conditions.The temporary administrator, of course, has no right to the realty of the estate.Other code...