Pendley v. Powers

• Decision Date: 12 August 1907
• Parties: PENDLEY v. POWERS et al.
• Court: Georgia Supreme Court

58 S.E. 653

129 Ga. 69

PENDLEY v. POWERS et al.

Supreme Court of Georgia

August 12, 1907

Syllabus by the Court.

Where an equitable petition was filed by creditors of a decedent against his administrator and others, showing that the estate was insolvent, that there were complications and conflicting claimants, and that it was necessary to appoint a receiver have an accounting taken, and administer the estate through a court of equity, and where a receiver was appointed and the case was referred to an auditor for an accounting and report each of the creditors, who was a party claiming payment from the assets of the insolvent estate, was interested in preventing them from being diminished, and consequent loss accruing to him by the payment of a claim barred by the statute of limitations.

[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§§ 657, 658.]

Under the circumstances above recited, the general rule that the right to set up the defense of the statute of limitations is a personal privilege did not prevent other creditors from contesting the claim of one who was seeking to obtain judgment and payment of a note barred by the statute of limitations.

Where the creditor who held such a note was made a party defendant and in his answer set out the note which he sought to have paid, and which appeared on its face to be barred by the statute of limitations, but the creditor alleged that the claim was relieved from the bar by reason of certain acknowledgments or new promises, on the hearing before the auditors it was not necessary for the other creditors, in order to contest such claim, to file a plea setting up the statute of limitations.

Under the evidence the finding of the auditor, approved by the presiding judge, to the effect that the note was barred, was not without support, and will not necessitate a reversal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§§ 722-726.]

Error from Superior Court, Bartow County; A. W. Fite, Judge.

Action between H. I. Pendley and H. M. Powers and others. From the judgment, Pendley brings error. Affirmed.

Jas. B. Conyers, for plaintiff in error.

Thos. W. Milner & Sons, Paul F. Akin, Joe M. Moon, T. C. Milner, G. H. Aubrey, J. T. Norris, and John W. & Paul F. Akin, for defendants in error.

LUMPKIN J.

Pendley had a promissory note against Harris, deceased. On its face it appeared to be barred by the statute of limitations. Under a bill to wind up the administration a receiver was appointed, and Pendley, who was one of the defendants, in his answer set up that he was entitled to a judgment and to share in the distribution. He sought to avoid the effect of the bar of the statute by reason of certain acknowledgments, which he claimed to exist from the receipts, entries, and a memorandum, which claim was set forth in his pleading. The auditor to whom the case was referred held that the note was barred by the statute of limitations. On exception the judge of the superior court sustained this finding, and this is the error assigned. Three questions arise in this case: (1) Was the right to set up the defense of the statute of limitations a personal privilege, which was confined to the administrator of the deceased maker of the note; or could it be set up by another creditor of the insolvent estate? (2) Was it necessary for the plaintiffs, who brought the petition under which the receiver was appointed and the reference to the auditor had, to file a regular plea setting up the bar of the statute of limitations; or could they, when Pendley sought to relieve the note from the effect of the statute by allegation and proof as to acknowledgments or new promises, contest the question of whether such relief had been effected, in connection with the determination of the debts against the estate and their legal priority? (3) Under the evidence was the finding of the auditor, approved by the presiding judge, that the note was barred, erroneous?

1, 2. It is well recognized as a general rule that the right to plead the statute of limitations to a suit is a personal privilege. A plea is the ordinary mode of setting up the defense. In some jurisdictions, although the note or cause of action sued on may appear on the face of the plaintiff's pleading to be barred by the statute of limitations, this is not a good ground for a demurrer; and it has there been held that the defense should be set up by plea, and, if this is done, a claim that the bar has not attached, by reason of a new promise, is then a matter of replication. In Georgia the practice of filing a replication by the plaintiff has been abolished. He sets out his cause of action, the defendant answers, and this makes the issue, without replication. From this difference in practice, doubtless, have arisen certain differences in rulings. In this state, if the petition of the plaintiff shows on its face that the cause of action is barred by the statute of limitations, advantage may be taken of it by demurrer. Lang v. Camp, 113 Ga. 1011, 39 S.E. 474; 9 Michie's Dig. 88. If the plaintiff desires to show that he is within any exception to the statute, it is incumbent on him to state it in his petition. This has long been held in equity cases. Worthy v. Johnson, 8 Ga. 236 (12). And under our present system of pleading it is equally true in common-law cases. Martin v. Broach, 6 Ga. 21 (6), 50 Am.Dec. 306; Jesup v. Epping, 66 Ga. 334. But the new promise may be added by amendment to the petition. Shumate v. Ryan, 127 Ga. 118, 56 S.E. 103. The present case is within the equitable jurisdiction of the court.

Without discussing at present the mode of procedure, the rule that the right to set up the defense of the statute of limitations is a personal privilege is not to be limited to a narrow and literal construction; or, if so, it is not without exceptions. An administrator or executor may plead the statute of limitations as to a liability of the decedent, a transferee may set up the defense when it is sought to subject the property transferred to him, and other instances might be cited. Where an insolvent estate has been placed in the hands of a receiver for administration and distribution each creditor is interested to see that only existing claims against the deceased share in the distribution. The administrator, who is no longer in possession or control of the estate, which has been taken in charge by the court, cannot be allowed to favor one creditor and prejudice another by pleading the statute of limitations as to some claims and not as to others, and denying to the interested creditors the right to make the defense, on the ground that it is a personal privilege. It may sometimes be his duty on behalf of the estate to raise the point; but, if he does not do so, creditors may avail themselves...