Groves v. Williams

• Decision Date: 28 February 1882
• Parties: Groves, ordinary, for use. vs. Williams, administrator, et at.
• Court: Georgia Supreme Court

68 Ga. 598

Groves, ordinary, for use. vs. Williams, administrator, et at.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Decrees. Judgments. Set-off. Equity. Administrators and Executors. Before Judge wellborn. White Superior Court. October Term, 1881.

Reported in the decision.

C. H. Sutton, for plaintiff in error.

M. G. Boyd, for defendants.

Speer, Justice.

This was a suit brought in White superior court in favor of the ordinary for the use of A. J. Nichols, assignee, against the defendants on an administrator's bond, given by the defendants, one as principal and the other as surety on the estate of Moses Horshaw, late of Habersham. county, deceased. The declaration contained two counts. The first alleging a breach of said bond, because the principal administrator had failed to pay the amount of a decree recovered against him by M. M. Horshaw, and alleging the issuance of a fi. fa. and a return of nulla bona thereon, and which had been duly assigned to Nichols, the usee of plaintiff; said decree amounting to $484.41, dated 20th of April, 1867, and fi. fa. issuing dated 28th of November, 1874. The second count alleged a general devastavit, charging Williams, as administrator, with having taken possession of the estate of his intestate, sold and converted proceeds to his own use, and his failure to pay over to plaintiff the amount due M. M. Horshaw, under said decree, and which had been assigned to plaintiff.

The defendants filed pleas of the general issue and certain special pleas in defence. On the trial of said cause, the jury, under the evidence and charge of the court, returned a verdict for the defendants. Whereupon the plaintiff made a motion for a new trial, which was overruled, and he excepted. The grounds of the motion were:

(1.) The court erred in not striking defendants' special plea.

(2.) The court erred in admitting in evidence the fi.fa. in the case of E. P. Williams, administrator, vs. Sarah McClure, widow and heir of A. C. Horshaw.

(3.) That the court erred in charging the jury as follows: " That if more than seven years had run from the time of the rendition of the decree in the case of E. P. Williams vs. the heirs of Moses Horshaw, rendered in Habersham superior court, the same was dormant, and could not be set up or enforced in this way without being first renewed by motion or scire facias."

The special plea which the court refused to strike on motion of plaintiff, in substance, alleged: " That the defendant as administrator, obtained a decree in Habersham superior court in the year 1867 against said plaintiff, and the other heirs at law and distributees of said Moses Horshaw, deceased, for the sum of $5,315.64, one-eighth part of which the said plaintiff's assignee was and is liable for and due to this defendant as administrator aforesaid, which decree and all other proceedings connected with the same is now here in court shown and legally certified, and by the terms of said decree it was provided that in the event said Alonzo L. Horshaw's estate (he being one of the deceased heirs of M. Horshaw) should be insufficient to pay off to this defendant as administrator of M. Horshaw said sum of money in full, as mentioned in said decree, then and in that event said plaintiff's assignee should account and pay over his pro rata share of said deficit. Further defendant averred, that in November, 1877, in the superior court of White county, he, as administrator, obtained a judgment against Sarah McClure, the former wife and widow of said Alonzo Horshaw, for the sum of $3,925.00, and $66.00 for costs, and sold out all the property of said Alonzo M. Horshaw, deceased, for the sum of $2000.00, leaving a balance of $2,000.00 or other large sum of money due and owing by said plaintiff's assignee to this defendant as administrator of M. Horshaw, and which sum he pleads as a set-off, and prays the same may be allowed."

Did the court err in refusing to strike this special plea, — is the first error assigned in the motion. The record dis-closes that Moses Horshaw, defendant\'s intestate died in 1859, that defendant became his administrator, and as such in 1866 filed his bill against the heirs at law to settle said estate, and by a decree under that bill some of the heirs were indebted to the administrator, and that the administrator was indebted to some of the heirs, and among them to Melvin M. Horshaw $484.49. That in the decree settling said estate it was provided " that if the estate of Alonzo L. Horshaw, one of the heirs at law (but now deceased) should prove insolvent, that then the other heirs of Moses Horshaw should contribute pro rata to make up said deficiency." Afterwards defendant, as administrator of Moses Horshaw, recovered a judgment against the estate of Alonzo L. Horshaw, and after selling out the whole estate there was a deficiency and balance due on the judgment of about $2,000.00 unpaid, and insolvent, and for his pro rata share of said sum it was...