Mathis v. Fordham

• Decision Date: 02 January 1901
• Citation: 114 Ga. 364,40 S.E. 324
• Parties: MATHIS et al. v. FORDHAM, Ordinary.
• Court: Georgia Supreme Court

40 S.E. 324

114 Ga. 364

MATHIS et al.

v.FORDHAM, Ordinary.

Supreme Court of Georgia.

Dee. 12, 1901.

EXECUTORS AND ADMINISTRATORS—ACTION-REPRESENTATIVE CAPACITY—ALLEGATION-PLEADING—SPEAKING DEMURRER—PARTIES — STRIKING ANSWER — JUDGMENT — DIRECTION.

1. Allegations to the effect that an action was brought against M. "as administrator on the estate of" W., and that the plaintiff obtained a judgment against "the said [M.], administrator as aforesaid, " sufficiently show—certainly as against a general demurrer—that the judgment was rendered against M. in his representative, and not in his individual, capacity.

2. A "speaking" demurrer is not good, (a) A demurrer to a petition presenting the point that a named person, described as heir at law of one deceased, was not joined as a party defendant, is of this character, when there is nothing in the petition showing that the deceased left any such heir.

3. A petition brought by an ordinary for the use of a named woman "and her three minor children" is not demurrable on the ground that "all of the plaintiffs' names are not set out in said petition." In such a case she and her children are not plaintiffs, but usees.

4. A ground of demurrer which does not present for decision any distinct question is without merit.

5. As the answer in the present case set up no good matter of defense, it was properly stricken, and there was no error in directing a verdict in the plaintiff's favor.

(Syllabus by the Court.)

Error from city court of Dublin; J. S. Adams, Judge.

Action by J. M. Fordham, as ordinary, for the use of Mary Jane Mathis and others, against A. J. Mathis and others. From a judgment in favor of plaintiff, defendants bring error. Affirmed.

The following is the report in the above

case:

Fordham, as ordinary of Laurens county, for the use of Mary Jane Mathis and herminor children, brought suit against A. J. Mathis, as principal, and J. N. Dorsey and W. S. Bryan, as securities, on an administrator's bond, alleging: (1) Said bond was payable to the ordinary and his successors in office, and was conditioned that the said A. J. Mathis should administer according to law upon the estate of James T. Warren, late of said county. (2) Said estate to be administered was of the value of $750. (3) On April 3, 1899, in the ordinary's court, Mary Jane Mathis sued for herself and minor children, and obtained a judgment against said administrators for the sum of $595.20. (4) Said judgment was obtained on a petition brought by the said Mary Jane, for the use of herself and minor children, for a settlement with the said A. J. Mathis, as administrator; all of said estate having been previously set aside for a 12 months' support for the said Mary Jane and minor children, the widow and children of the said James T. Warren, deceased. (5) Said administrators having failed to pay said judgment, an execution was issued against the lands, tenements, etc., of the deceased, then in the hands of the said administrator to be administered, if to be found, and, if not found, then against the lands, tenements, etc., of the said A. J. Mathis; and, the sheriff of said county having made a return of nulla bona on said execution, a breach of said bond was established. (6) Since the execution of said bond, said J. N. Dorsey, one of the securities, has departed this life intestate, leaving an estate largely in excess of said bond, which estate has been administered upon by A. L. Dorsey, and which estate of the said J. N. Dorsey has been distributed among his heirs at law, naming them. (7) By reason of the facts above stated said A. J. Mathis, W. S. Bryan, A. L. Dorsey, Emma Dorsey, Anna Dorsey, and Clara Dorsey, all of said county and state, have become jointly and severally liable to petitioner for the uses aforesaid in the amount of said judgment. (8) Anna Dorsey and Clara Dorsey are minors, and on the 1st day of November, 1897, A. L. Dorsey was appointed as their guardian and qualified as such.

To the foregoing petition J. N. Dorsey, by his legal representative, A. L. Dorsey, Emma Dorsey, Anna Dorsey, Clara Dorsey, and W. S. Bryan, pleaded as follows: (1) That neither of them are indebted as alleged. (2) That they cannot deny the third, fourth, fifth, and sixth paragraphs, but, answering the third and fourth, say that if such judgment was obtained against the defendant A. J. Mathis for $595.20, on the ground that he as administrator was indebted to them, such judgment was illegal and contrary to law and equity, and that defendants are not bound thereby, because the said Mathis did not owe said estate; he as administrator having made improvements on said estate to the value of $1,821.47. That he paid the debts of said estate, amounting to $500, and furnished stock, mules, wagons, etc., amounting to $400. (3) Defendants deny the allegations made in the seventh paragraph of plaintiff's petition. (4) Defendants say that the year's support set apart for the plaintiffs was illegal and void, and that no action can be based thereon. (5) That the estate turned over to plaintiffs by Mathis as administrator was worth four times as much as when it was received by him.

On motion said plea was stricken, and a verdict directed for the plaintiffs.

Griner & Baldwin and Jas. K. Hines, for plaintiffs in error.

Jas. B. Sanders and Alex. Akerman, for defendant in error.

LUMPKIN, P. J. An action was brought in the city court of Dublin by J. M. Ford-ham, as ordinary, suing for the use of Mary Jane Mathis "and her three minor children." The petition is set forth in the official report preceding this opinion. To this petition the defendants filed a demurrer based upon the grounds: "(1) That there is no cause of action set forth in said petition; (2) that one of the heirs at law of J. N. Dorsey, to wit, Laura E. Garrett, was never sued in said action; (3) because there is nothing set forth in said petition to predicate the suit upon, and all of the plaintiffs' names are not set out in said petition; (4) the defendants were not bound at any time to said estate, except by bond, and the bond which they gave has not been sued upon." The demurrer was overruled, and the defendants excepted. They also filed an answer, the substance of which appears in the above-mentioned official report. This answer, on demurrer thereto, was stricken by the court...