Rusk v. Ordinary

• Decision Date: 25 June 1903
• Parties: RUSK et al. v. HILL, Ordinary, et al.
• Court: Georgia Supreme Court

45 S.E. 42

117 Ga. 722

RUSK et al.

v.HILL, Ordinary, et al.

Supreme Court of Georgia.

June 25, 1903.

BILL OF EXCEPTIONS — SERVICE — AUDITOR'S REPORT — ENTRY OF DECREE — MISJOINDER OF PARTIES—POWERS OF AUDITOR—LETTERS OF ADMINISTRATION.

1. In computing the 10 days within which a bill of exceptions should be served, Pol. Code, § 4, par. 8, to the effect that the first or last day should be excluded, is applicable. It follows that where a bill of exceptions is certified on the 10th day of the month,.and is served on the 20th day of the same month, such service is within the 10 days prescribed. Mott v. Bruns. Pub. Co., 43 S. E. 716, 117 Ga. 149, disapproved.

2. When there is no merit in either the exceptions of law or the exceptions of fact taken to an auditor's report, a final decree should be entered without the intervention of a jury; but an error of practice committed in directing a verdict and entering a decree thereon affords no cause for reversing the judgment thus irregularly rendered.

3. Objection to the maintenance of an action on the ground that there is a misjoinder of parties plaintiff must be made, if at all, by way of a special demurrer presented in due time.

3. See Parties, vol. 37, Cent. Dig. §§145, 146.

4. An auditor is without jurisdiction to strike an amendment to pleadings which was allowed by the court before the case was referred to him.

5. Assignments of error based on the ground that an auditor improperly overruled objections urged against.the admission of evidence cannot be considered' unless the evidence objected to be set forth, either literally or in substance, in the exceptions filed to his report.

6. Letters of administration granted to an applicant therefor without causing a citation to issue in conformity to law are wholly without legal force or effect.

7. It is within the discretion of an auditor to allow leading questions to be propounded to a witness whenever the ends of justice may thus be subserved.

(a) No abuse of such discretion was shown in the present case.

(b) The testimony so elicited was not, for any reason urged before the auditor, inadmissible.

S. When an administrator, without consulting the heirs of his intestate, allows one not an heir to participate with them in the distribution of the assets of the estate he represents, he does so at his peril; and the lawful heirs are not estopped from subsequently calling upon him for a legal accounting and settlement, notwithstanding they may have known of such misapplication of trust funds and raised no objection thereto, if at the time they ignorantly supposed he was properly administering the estate, and in no way misled him into the belief that he was acting with their approval and consent. Such heirs may, however, be held to account for so much of the fruits of the administrator's unlawful disbursement of trust funds as came to them, by way of gift or inheritance, from the person to whom he improperly gave recognition as an heir.

9. There was, in the present case, ample evidence to support a finding in favor of the prevailing party in some amount; and, if any error was committed by the auditor in fixing the precise sum which that party was entitled to recover, such error should have been specifically pointed out in the exceptions filed to his report.

(Syllabus by the Court.)

Error from Superior Court, Cherokee County: Geo. F. Gober, Judge.

Action by W. D. Hill, ordinary, for use, etc., against T. J. Rusk and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. P. Brooke, W. D. Mills, and H. B. Moss, for plaintiffs in error.

C. D. Phillips, P. D. McClesky, and J. Z. Foster, for defendant in error.

SIMMONS, C. J. In the year 1882, Wil-liam J. Rusk, then a resident of Habersham county, died intestate, leaving a large estate. In the following year James B. Rusk was duly appointed and qualified as the administrator of this estate. He gave a bond, payable to the ordinary of that county and his successors in office, which was signed by A. J. Nichols and W. W. Berry as sureties. Subsequently the administrator, desiring to have Berry assist him in his duties, procured Berry to apply to the ordinary to be appointed as a coadministrator, and on May 7, 1883, the ordinary passed an order granting his application. Berry thenceforth assumed to act in the capacity of a coadministrator, collected assets belonging to the estate, and joined with James E. Rusk in making annual returns to the ordinary. In 1893, James E. Rusk died, leaving the affairs of the estate he represented still unsettled. His two sons, W. H. Rusk and T. J. Rusk, were in the same year appointed administrators on his estate, qualified as such, and received from Berry $028 as the distributive share of their father in the estate left by William J. Rusk, whose heirs at law were: His three sisters, Nancy E., Mary A., and Ellenor J. Rusk; his brother James E. Rusk; three children of David Rusk, a deceased brother; and seven children of another deceased brother. In the early part of 1900 a suit was instituted in the name of W. D. Hill, ordinary of Habersham county, on the administrator's bond given by James E. Rusk, the purpose of this suit being to compel an accounting with certain heirs and representatives of heirs of William J. Rusk, who were named as usees of the plaintiff. The parties defendant to this action were W. H. and T. J. Rusk, as administrators of James E. Rusk, the sureties on a bond which they had given as such administrators, and W. W. Berry, as surety on the bond sued on. The suit was based on the theory that the appointment of Berry as a coadministrator with James E. Rusk was a nullity, and accordingly that the estate of the latter was liable not only for all trust funds which actually came into his hands, but also for all assets of the estate of William J. Rusk which went into the possession of Berry, whose true relation to James E. Rusk was that of a mere agent. The plaintiff further sought to hold W. H. and T. J. Rusk accountable, in their capacity as the legal representatives of the estate of James E. Rusk, for all funds derived from the estate he represented which had come into their hands since his death. To this end the plaintiff prayed that the equitable powers of the court might be exercised to compel an accounting in this same suit between the persons named as his usees and W. H. and T. J. Rusk, as such administrators, with respect to these trust funds, and that said usees might be allowed to appear in their own behalf as parties plaintiff, so far as this branch of the litigation was concerned. In his prayer for nrocess the plaintiff asked that "the said W. H. Rusk and T. J. Rusk, of Cherokee county, " might be required to appear at the next term of court to answer his complaint. By an amendment allowed on February 25, 1901, the plaintiff inserted in his prayer for process, as a further designation of "the said W. H. Rusk and T. J. Rusk, " the descriptive words, "as administrators of James E. Rusk, deceased." All of the defendants made answer to the petitioner's complaint. In a separate answer filed by W. H. and T. J. Rusk they set up, among other special defenses, the following: David Rusk, whose death occurred prior to that of William J. Rusk, left a widow, Luthira Rusk, and three children. When James E. Rusk, as administrator, undertook to make distribution of that portion of the estate of William J. Rusk which fell to the heirs of David Rusk, he (the administrator) divided the sum to which these heirs were entitled into four equal parts, and allowed the widow, Luthira, to share equally with each of her children in the distribution of this sum. They knew that "their mother was getting an equal portion with them, and agreed and consented for the same to be paid to her, " and are therefore estopped from now claiming that the amount paid to their mother, to wit, $425, should have been paid over to them. Furthermore, "Luthira Rusk died in possession of money and other property which her said children divided among themselves and got the benefit of, some of it being the identical proceeds of the money she received from" the estate of William J. Rusk, and "it would be unjust for a court of equity not to require them to account for the funds paid to their mother" by his administrator. On the 15th of April, 1901, his honor of the court below passed an order whereby, with the consent of all parties, the case was referred to an auditor. A hearing was had before the auditor during the month of November of that year, and on February 4, 1902, he duly submitted his report The same being adverse to the defendants, W. H. and T. J. Rusk, as administrators of James E. Rusk, filed exceptions both of law and of fact. At the August term, 1902, of the superior court, the presiding judge passed an order reciting that, after hearing argument upon these exceptions to the auditor's report, it was adjudged that the exceptions of law be overruled, and that the exceptions of fact be disallowed. To this order exception was taken, and the case was brought to this court for review by a bill of exceptionssued out in behalf of W. H. and T. J. Rusk in their representative capacity. In this bill of exceptions further complaint is made that his honor instructed plaintiff's counsel to submit the case to a jury, and, after counsel had offered in evidence the auditor's report, directed the jury to. return a verdict in accordance with his findings, and entered up a decree on this verdict. Error is also assigned upon the refusal of the judge to sustain a motion by counsel for the plaintiffs in error, presented after the order above referred to was passed, but before the final decree was signed, whereby they sought to have the name of W. D. Hill, ordinary, stricken from the petition which had been filed in behalf of the persons therein named as usees, on the ground that he was a useless party, etc. On the call of the case in this court, a motion was made to...