Porter v. Rountree

• Decision Date: 13 July 1900
• Citation: 111 Ga. 369,36 S.E. 761
• Parties: PORTER. v. ROUNTREE.
• Court: Georgia Supreme Court

111 Ga. 369

36 S.E. 761

PORTER.

v.ROUNTREE.

Supreme Court of Georgia.

July 13, 1900.

EXECUTORS AND ADMINISTRATORS — JUDGMENTS — COLLATERAL, ATTACK — JUDGMENT AGAINST EXECUTOR—PERSONAL LIABILITY— DEVASTAVIT.

1. Where a judgment de bonis testatoris is obtained against an executor, execution issued thereon, a return of nulla bona made by the sheriff, and a suit brought on the judgment against the executor personally, suggesting a devastavit, the executor cannot, in his defense to the suit, make a collateral attack upon the judgment by showing fraud or mistake in its rendition; and this is true although the judgment was rendered by the same court in which the suit thereon is pending.

2. The modification of such judgment de bonis testatoris by the statement that it is not to be a personal judgment against the executrix does not preclude the plaintiff from bringing suit upon it against the executrix personally, suggesting a devastavit.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by D. W. Rountree against Mrs. P. L. Porter. From a judgment sustaining a demurrer to defendant's answer, she brings error. Affirmed.

J. H. Porter, Jr., and Arnold & Arnold, for plaintiff in error.

John T. Pendleton, for defendant in error.

SIMMONS, C. J. It appears from the record that Rountree brought suit in the city court of Atlanta against Mrs. Porter, as executrix of her husband, and against Farrar and Williams. There was no defense to the action, but counsel for Mrs. Porter agreed in writing that a verdict and judgment be rendered against her de bonis testatoris, adding to such judgment a stipulation that it should not be a personal judgment against the executrix. Execution was issued, and a return of nulla bona made thereon by the sheriff. Thereupon Rountree brought an action upon the judgment, seeking to make the executrix personally liable for a devastavit. To this action the executrix filed an answer, setting up that the judgment sued on was obtained by fraudulent representations, and by mistake on the part of her counsel in signing the consent verdict and judgment. Various allegations were made in this answer as to the fraudulent representations and the manner in which the mistake was made. These it is not necessary, in the view we take of the case, to set out here. The court sustained a demurrer filed by the plaintiff to this answer. The defendant excepted.

1. It is well settled that a judgment regular on its face, and rendered by a court having jurisdiction of the parties and of the subject-matter, cannot be attacked collaterally by the defendant for any errors or irregularities entering into the judgment or inducing its rendition. The only way to have such a judgment set aside is by appeal or writ of error, or by a direct attack on it In thepresent case the judgment against the executrix was rendered in April, 1898. No exception was taken, and the judgment stands to-day unreversed. When the plaintiff filed against the executrix a suit predicated upon this judgment, the executrix filed the answer above mentioned. This was, in our opinion, making upon the judgment a collateral attack, which the law does not permit. This is true,...