Patterson v. Blanchard

• Decision Date: 01 June 1896
• Parties: PATTERSON. v. BLANCHARD.
• Court: Georgia Supreme Court

98 Ga. 518

25 S.E. 572

PATTERSON.

v.BLANCHARD.

Supreme Court of Georgia.

June 1, 1896.

Abatement—Effect—Administrators — Certificate of Deposit—Demand—Accrual of Cause op Action.

1. Although, as held by this court in Isbell v. Blanchard, 94 Ga. 678, 21 S. E. 720, a foreign administrator de bonis non could not be made a party plaintiff to an action brought in a court in this state by his predecessor in the trust, whose letters had abated, and thus keep that case in court, it does not follow that the original right of action was lost. While the particular action abated, the cause of action remained of force, and could be asserted in a new and independent suit by the administrator de bonis non.

2. The action being by an administrator for money deposited by his intestate, a nonresident of this state, with a partnership of which the defendant was the survivor, and based upon a "writing obligatory, " acknowledging the receipt from the intestate, for her account, of a specified sum, and concluding with the words, "We are to allow you 8 pr. ct. on the ami, " but specifying no time for payment; and the declaration alleging that the intestate died in 1884, without having demanded payment of the sum so deposited, and that there had been no representation upon her estate until 1891, when for the first time her administrator demanded payment, and the same was refused, —it was error to dismiss the action on the ground that the same was barred by the statute of limitations. There was no liability to pay until after demand; and, consequently, the statute of limitations did not begin to run in favor of the debtor until after demand had been duly made and payment refused.

(Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by M. L. Patterson, Jr., administrator, against T. E. Blanchard, surviving partner. Prom a judgment for defendant, plaintiff brings error. Reversed.

Goetchius & Chappell, Blandford & Grimes, Tol Y. Crawford, and L. F. Garrard, for plaintiff in error.

Brannon, Hatcher & Martin and Wm. A. Little, for defendant in error.

LUMPKIN, J. The foregoing syllabus renders the nature of this case sufficiently apparent.

1. There is nothing in the decision pronounced by this court in the case of Isbell v. Blanchard, 94 Ga. 678, 21 S. E. 720, which could fairly be construed into a holding that the cause of action set out in Isbell's declaration was lost. Following the case there cited, we simply held that, when his letters of administration abated, his successor in the trust (he being, as Isbell was, a foreign administrator) could not be substituted for him as a party plaintiff, so as to keep that action In court. We surely did not intend to rule in that case that a foreign administrator of Mrs. Orr could not institute an original and Independent suit in a court of this state upon the identical cause of...