Harris v. Woodard

Decision Date15 June 1909
Citation65 S.E. 250,133 Ga. 104
PartiesHARRIS v. WOODARD.
CourtGeorgia Supreme Court

Rehearing Denied Aug. 4, 1909.

Syllabus by the Court.

In a suit upon a written contract, wherein no issuable defense has been filed on oath or affirmation, the superior court has no jurisdiction to render judgment without the intervention of a jury, unless such judgment can be rendered without resort to any evidence except that afforded by the contract sued on.

An executor has no power, ex officio, to bind the estate which he represents, by the execution of a promissory note. In order for him to have such power, it must be conferred upon him by the will.

An executor, as such, is not estopped to attack the validity of a judgment which is sought to be enforced against the property of the estate which he represents, by allegations or admissions in reference to such judgment, made by him in a judicial proceeding which he, in his individual capacity brought against the judgment creditor.

Nor is he thus estopped if such judicial proceeding was brought by him in his representative capacity, when the estate which he represents derived no benefit, and the judgment creditor received no injury in consequence of such allegations or admissions.

Upon the trial of an illegality case, the title to the property levied upon is not involved, and evidence offered by the plaintiff in execution for the purpose of showing that, prior to the levy, the defendant in execution had conveyed such property to a third party, is irrelevant and immaterial.

Error from Superior Court, Houston County; W. H. Felton, Judge.

I. T Woodard, administrator of the estate of F. W. Gano, having caused an execution to be levied upon certain real estate, W H. Harris, as executor of H. C. Harris, filed an affidavit of illegality. Judgment for plaintiff in execution, and Harris as executor, brings error. Reversed.

In September, 1898, F. W. Gano brought in the superior court of Houston county, a suit to recover the balance due upon a promissory note, which the petition alleged was "executed to petitioner" by "W. H. Harris, executor of will of H. C. Harris," and indorsed by "W. H. Harris." Attached to the petition was a copy of the note, from which it appeared that the note was dated September 24, 1895, and that the maker therein obligated himself in the following language: "Jan. 1, after date, I promise to pay to F. W. Gano, or order, twenty-five hundred *** dollars, for value received," etc., and signed the instrument "W. H. Harris, Exr. of Will of H. C. Harris," and that the note was, in the conventional sense, "Indorsed: W. H. Harris." The petition alleged that there was "due upon said note by said W. H. Harris, executor, as maker, and W. H. Harris, as indorser, the principal sum of $2,000.00," etc. Process was prayed against "said W. H. Harris, executor, and W. H. Harris, indorser." In the process attached by the clerk to the petition the case was stated as follows: "F. W. Gano v. W. H. Harris, Extr.," and the process simply required "the defendant *** to be and appear," etc. The entry of service showed service on "W. H. Harris, Exr., the Deft. in this case." No defense was filed to the suit. On October 3, 1899, judgment was rendered as follows: "It appearing that this is a suit on an unconditional contract in writing, and that no issuable defense on oath has been filed to the same, it is therefore ordered and adjudged that the plaintiff do recover of the defendant the sum sued for, to wit," etc. An execution was issued upon this judgment, wherein the sheriff was commanded "that of the goods, chattels, lands, and tenements of W. H. Harris, executor of H. C. Harris," he should cause to be made the amount of the judgment. On October 7, 1903, upon the ex parte application of the plaintiff, and without the knowledge or consent of the defendant, the judgment was so amended as to make it de bonis testatoris; that is, one to "be levied on the goods, chattels, lands, and tenements of H. C. Harris, deceased, in the hands of W. H. Harris, executor to be administered." On November 2, 1903, the clerk of the court so amended the execution as to make it correspond to the judgment as amended. On March 9, 1904, the sheriff levied the amended execution upon certain real estate, "as the property of the estate of H. C. Harris, deceased, and found in the possession of W. H. Harris, executor of H. C. Harris." Subsequently the sheriff made this additional entry upon the execution: "Due search made, and no property of the estate of H. C. Harris in the hands of W. H. Harris, executor, to be found in Houston county, upon which to levy the within fi. fa. This the 6th day of March, 1905."

On May 14, 1907, an affidavit of illegality, containing nine grounds, was interposed to the levy by W. H. Harris as executor. Ground 1 alleged that the judgment from which the execution issued was void; "but, if valid, it was a judgment against W. H. Harris individually, and not against him as executor, and that no judgment de bonis testatoris was rendered in said suit, that none could have been rendered on the pleadings," that the "judgment was rendered without the intervention of a jury, and *** no valid judgment de bonis testatoris could have been rendered *** without the introduction of evidence, and therefore without the verdict of a jury." The facts as to the amendment of the judgment and the amendment of the execution were also averred, and it was alleged "that no valid judgment collectible out of the assets of said estate could be rendered on the pleadings in said suit," and that the amendments to the judgment and execution were illegal and void. In ground 2 it was alleged that the fi. fa. issued "illegally because the only process issued and served *** was against 'W. H. Harris, Exr.,' that the only service made was upon W. H. Harris, executor, and *** this process, if a valid and legal process, was solely against W. H. Harris individually; wherefore deponent charges that the declaration in said suit was against W. H. Harris individually, the process was against him individually, and that deponent as executor, the defendant in the above-named fi. fa., was never served with process, or other notice of the pendency of any suit of F. W. Gano against him as executor of the will of H. C. Harris, *** and never by himself or any agent or attorney waived such service or notice, nor did he as executor ever appear or plead to said suit or action."

The plaintiff in execution demurred to all of the grounds of the illegality. When the case came on to be heard, four of these grounds were withdrawn by the defendant, and the court sustained the demurrer as to three of the remaining grounds but overruled it as to grounds 1 and 2 above set forth. The case then proceeded to trial before a jury. The defendant in execution, in support of the illegality, introduced the entire record in the suit wherein the judgment in question was rendered, including the original judgment and execution and the amendment to the judgment and the corresponding amendment to the fi. fa., together with all the entries upon the execution. He testified that he was "executor of H. C. Harris," and did not have any notice of the amendment to the judgment, and "first ascertained that the judgment and fi. fa. had been amended some time in 1906," that he "filed no plea to this suit," and "did not know how the judgment was taken." The plaintiff in fi. fa. introduced certain documentary evidence from which it appeared that "W. H. Harris, executor will H. C. Harris," had brought a petition for injunction against F. W. Gano, and, upon complying with a certain condition as to giving bond, imposed upon him by the court, had, upon the allegations of his petition, obtained an injunction restraining Gano from proceeding to enforce the judgment now in question, and from selling or transferring the same, until certain suits brought by Harris against the firm of Gano & Jennings should be disposed of. The plaintiff in execution also introduced a portion of the answer filed by Harris in a suit brought against him by Woodard, as administrator of the estate of F. W. Gano, deceased, after the entry of nulla bona had been made upon the execution, wherein Harris had alleged that the judgment involved in the present case was not against him individually and that he was not indebted to the plaintiff in any sum whatever. The plaintiff then introduced the will of H. C. Harris, wherein W. H. Harris was appointed executor, the second item of which was as follows: "I will that my said executor shall have all the powers and rights, with reference to the management of all property left by me, that I myself would have if living; that, without any order of any court or judge whatever, he may sell, incumber, reinvest, or purchase any property, real or personal, money, stocks, or other property; and that such transaction shall be as valid and binding upon my estate as if done by me in person; my purpose being that for all purposes in the management of my property and business my said executor shall stand in my place and stead; his judgment being the sole guide and authority for all his actings and doings as my legal representative. And I direct that he be not required to make any returns of his actings and doings as my executor to any court." The plaintiff also introduced a deed, dated March 2, 1904, made by W. H. Harris, executor of the will of H. C. Harris, to W. H. Hollinshead, conveying, for an alleged consideration of $8,100, the property levied on. Upon the...

To continue reading

Request your trial
27 cases
  • Ga. Power Co v. Friar
    • United States
    • Georgia Court of Appeals
    • September 30, 1933
    ...Georgia R. R., etc., Co. v. Pendleton, 87 Ga. 751, 13 S. E. 822; Crow v. American Mortgage Co., 92 Ga. 815, 19 S. E. 31; Harris v. Woodard, 133 Ga. 104, 65 S. E. 250; Laramore v. Dudley, 145 Ga. 102 (2), 88 S. E. 682; Reinach v. Atlantic & G. W. R. Co. (C. C.) 58 F. 33 (3); 15 C. J. 729; 33......
  • Georgia Power Co. v. Friar
    • United States
    • Georgia Court of Appeals
    • September 30, 1933
    ... ... See Georgia R. R., etc., Co. v ... Pendleton, 87 Ga. 751, 13 S.E. 822; Crow v. American ... Mortgage Co., 92 Ga. 815, 19 S.E. 31; Harris v ... Woodard, 133 Ga. 104, 65 S.E. 250; Laramore v ... Dudley, 145 Ga. 102 (2), 88 S.E. 682; Reinach v ... Atlantic & G. W. R. Co. (C. C.) 58 ... ...
  • Shadburn Banking Co. v. Streetman
    • United States
    • Georgia Supreme Court
    • March 16, 1935
    ... ... Davis has ... not taken any position which has been acted on by an adverse ... party to his injury. See Harris v. Woodard, 133 Ga ... 104, 65 S.E. 250 ...          4 ... Special ground 1 of the motion for new trial complains of the ... ...
  • Underwood v. Underwood
    • United States
    • Georgia Court of Appeals
    • July 25, 1931
    ...property in pursuance of such proceeding. Boyce v. Watson, 20 Ga. 517 (2); Lamar v. Pearre, 90 Ga. 377 (1), 17 S.E. 92; Harris v. Woodard, 133 Ga. 104 (3), 65 S.E. 250; Mims v. Jones, 135 Ga. 541, 544, 69 S.E. 824; C.J. 423. The court did not err in rejecting the plaintiff's theory of estop......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT