Edwards v. Ross

• Decision Date: 31 January 1877
• Citation: 58 Ga. 147
• Parties: Elizabeth G. Edwards, administratrix, plaintiff in err0r. v. ALBERT B. Ross, administrator, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 147

Elizabeth G. Edwards, administratrix, plaintiff in err0r. v. ALBERT B. Ross, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Statute of Limitations. Administrators and Executors. Renewal. Before Judge Hill. Bibb Superior Court. April Term, 1876.

Elizabeth G. Edwards, as administratrix upon the estate of James C. Edwards, deceased, brought assumpsit against Albert B. Ross, as administrator upon the estate of Thomas Taylor, deceased, for $11,328.25, with interest from January 1st, 1863. Her declaration made, in brief, the following case:

Edwards was a general land agent residing in Macon, and having his business office there. In May, 1857, he entered into a written contract with Taylor, then temporarily in Macon, containing no specified place of performance, to effect the sale of certain lands, upon which he was to receive a commission of ten per Ib. on all sales which he should make at or over certain stipulated prices. After much labor, in the year I860, he effected the sale of said lands, at prices not below the amounts stipulated, his commissions upon which amounted to the sum above mentioned. Edwards was *not only empowered by said contract to sell the undivided interest of Taylor, but also the interest of the joint owners with him, by reason of which he became entitled to an additional $5,267.50.

At the time the contract was made (May, 1857,) and when the injury was sustained (November, 1860,) by Taylor's refusal to comply with his contract, he resided in the state of New York, and continued to reside there until his death in April, 1871, and never revisited in Georgia after August, 1860. He was, in the state of New York, in the year 1866 or 1867, legally declared a lunatic and a committee put over him, and so remained until his death. The defendant became his administrator in Georgia on October 9th, 1871, whereby plaintiff says the cause of action did not accrue until twelve months after that date. In April, 1861, war was formally declared between the sections, New York being on one side and Georgia on the other. The statute of limitations was suspended from November 30th, 1860, until July 18th, 1868.

On December 29th, 1869, plaintiff commenced suit by attachment, on this cause of action, against Philetus H. Holt as commissioner over Thomas Taylor, a lunatic. At October term, 1871, of Bibb superior court, Albert B. Ross, as administrator, was made a party defendant by consent. A demurrer was filed to this attachment which was sustained, and the judgment of the superior court affirmed by the supreme court on April 14th, 1874, on the ground that there was no law in Georgia authorizing such a proceeding, either against a non-resident lunatic or his non-resident committee. This judgment was made the judgment of Bibb superior court on May 11th, 1874, and this suit was filed on October 6th, of the same year.

The declaration was, by amendment, made thus full in order that the...