Gibson v. Robinson

• Citation: 16 S.E. 969,90 Ga. 756
• Parties: GIBSON et al. v. ROBINSON.
• Decision Date: 09 February 1893
• Court: Supreme Court of Georgia

16 S.E. 969

90 Ga. 756

GIBSON et al. v. ROBINSON.

Supreme Court of Georgia

February 9, 1893

Syllabus by the Court.

1. Where, in an action upon an administrator's bond, the contents of the bond, and a breach thereof, are substantially set forth in the declaration, it was not necessary to attach to the declaration a copy of the bond itself. Nor was it error to admit the bond in evidence over an objection "that as the bond sued on, or a copy, was not attached to the declaration, there was no evidence that the bond introduced was the one sought to be enforced."

2. Where an administrator is sued upon an alleged debt of his intestate, and fails to plead a want of assets, a judgment against him in such suit is conclusive upon him of a sufficiency of assets to pay the debt. But, as to a surety upon the administrator's bond, such judgment is prima facie evidence, merely, and inconclusive upon this question and, when sued upon such bond, the surety may plead and prove a deficiency of assets in the hands of his principal liable to the payment of the debt.

3. As a general rule, where a judgment is relied on as an estoppel or as establishing any particular state of facts of which it was the judicial result, it can be proved only by offering in evidence a complete and duly-authenticated copy of the entire proceedings in which the same was rendered. Yet, where the only direct object to be subserved is to show the existence and contents of such judgment, a properly authenticated copy of the judgment entry of a court of record possessing general original jurisdiction is admissible, without more, and on being admitted, all the legal incidents attach which the law annexes to judgments of that class.

4. An entry as follows by a sheriff upon an execution de bonis testatoris, rendered against an administrator, "After search and inquiry, I know of no property of the defendant in the county of Jones, upon which to levy this fi. fa.," should be construed as meaning that the sheriff can find no property in the hands of the administrator, belonging to the estate of his intestate, and is a sufficient return of nulla bona. The person named as defendant in the execution being described as "administrator," etc., reference to him by the sheriff in his entry as "defendant" merely, is an attempt to designate such person in his representative, not in his individual, capacity.

5. The court erred in directing a verdict for the plaintiffs.

Error from city court of Macon; JOHN P. ROSS, Judge.

Action by O. C. Gibson and others against Edith H. Robinson on a bond. There was judgment for plaintiffs, and defendant brings error. Reversed.

C. C. Kibbee and Estes & Estes, for plaintiff in error.

Gustin, Guerry & Hall, for defendants in error.

LUMPKIN J.

1. The plaintiffs, in their declaration, set forth, substantially, the contents of the bond sued on, and the facts constituting a breach thereof. Certainly, this is all that could be required of them. The form of pleading set forth in section 3391 of the Code, commonly known as one of the "short" forms, is but cumulative in its character. Its use is permissive, not obligatory. It follows, without argument, that there was no merit in the objection urged to the admission of the bond itself in evidence, on the ground that neither the original bond, nor a copy thereof, being attached to the declaration, "there was no evidence that the bond introduced was the one sought to be enforced."

2. The principle contained in the second headnote has been so often recognized by this court as to have become settled law in this state. It was announced as far back as the first volume of our Reports, (Bryant v. Owen, 1 Ga. 355;) and as said by Justice BLANDFORD in Bennett v. Graham, 71 Ga. 213, "such have been the continuous and uninterrupted rulings of this court." See cases cited. Further than to say we think the principle fully applies to the facts of this case, discussion of the subject would seem unnecessary and unprofitable. It was error to strike the special pleas filed by the surety on the bond; the court holding, in effect, that the judgment rendered against the administrator in favor of the plaintiffs was equally binding upon the surety. The pleas were at least good in substance, and, the surety being deprived by such erroneous ruling of so important a branch of his defense, the case must be sent back for a new trial. After defendant's special pleas were stricken, certain evidence was sought to be introduced in defense under the plea of the general issue. To the refusal of the court to allow the introduction of such evidence, numerous grounds of exceptions are presented. From such consideration as we have given to the evidence thus set forth, it would appear that no question as to its admissibility could arise if the tender was made under the pleas which were improperly stricken by the court. This being so, under the ruling herein made, these questions will not likely arise upon the rehearing of the case, and therefore need not be considered further.

3. It is well recognized as a general rule that where a judgment is relied on as an estoppel, or as establishing any particular state of facts of which it was the judicial result, it can be proved only by offering in evidence a complete and duly-authenticated copy of the entire proceedings in which the same was rendered. But, where the only direct object to be subserved is to show the existence and contents of such judgment, this rule does not apply; and a certified copy of the judgment entry of a court of record possessing general original jurisdiction is admissible, by itself, to prove rendition and contents. 2 Black, Judgm. § 604; 1 Greenl. Ev. § 511. Such entry will be prima facie evidence of a valid judgment, and, on being admitted, all the legal incidents attach which the law annexes to judgments of that class. It will not, however, be conclusive either of jurisdiction of the parties, service, or of any other matter material to the rendition of a valid judgment; and, of course, if the party against whom it is offered can derive any benefit from proving the antecedent or subsequent proceedings or the want of any legal essential, he is still at liberty to introduce the entire record. Thus it will be seen that the exception to the general rule, while of material advantage and convenience to the one, can result in no hardship upon the other, of the parties. The reasons for this exception, as well as those which support the general rule, will appear upon examination of the following cases, which we cite as persuasive authority for the ruling announced in the third headnote: Adams v. Olive, 62 Ala. 418, following previous decision in Locke v. Winston, 10 Ala. 849; Starke v. Gildart, 4 How. (Miss.) 267; Carson v. Doe, 6 Smedes & M. 111; Henderson v. Cargill, 31 Miss. 367; MacGuire v. Kouns, 7 T. B. Mon. 386; Chinn v. Caldwell, 4 Bibb, 543; Lee's Adm'x v. Lee, 21 Mo. 531; Haynes v. Cowen, 15 Kan. 637; Rathbone v. Rathbone, 10 Pick. 1; Gardere v....