Weaver v. Tuten

• Decision Date: 12 April 1912
• Parties: WEAVER et al. v. TUTEN.
• Court: Georgia Supreme Court

74 S.E. 835

(138 Ga. 101)

WEAVER et al.

v.TUTEN.

Supreme Court of Georgia.

April 12, 1912.

(Syllabus by the Court.)

1. Evidence (§ 345*) — Documentary Evidence—Exemplification.

An exemplification from the record of the various proceedings in the court of ordinary relating to the administration of an estate is not to be rejected from evidence because the verification of the whole is embraced in one certificate, where the entire record is competent evidence.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1302-1314, 1331-1360; Dec. Dig. § 345. *]

2. Evidence (§ 340*) — Judgment — Admissibility.

The general rule is that where a judgment is relied upon as an estoppel, or establishing a particular state of facts, of which it was the judicial result, it can be proved only by offering in evidence the complete and duly authenticated copy of the entire proceedings in which the same was rendered, yet, where the only direct object to be subserved is to show the existence and contents of such judgment, a properly authenticated copy of the judgment entry of a court of record, possessing' general original jurisdiction is admissible, without more.. [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1294-1301; Dec. Dig. § 340.*]

exkc'dtoes and administrators (§ 535*)— Liabilities on Bonds—Actions—Evidence In a suit against the sureties of a removed administrator by his successor in office, a judg-••ment rendered by the ordinary against the administrator on a citation by the distributees for a settlement is competent evidence.

TEd. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2462-2475; Dec. Dig. § 535.*]

4. Executors and Administrators (§ 537*)— Liabilities on Bonds — Actions — Direction op Verdict.

Civil Code, § 3974, authorizes a suit against the sureties of an administrator alone, if their principal is beyond the jurisdiction of the state, or is dead and his estate unrepresented, or in such position that an attachment may be issued against him. Where, in an action against the sureties, it is alleged that the administrator ab-sconds and has removed from the state, and this allegation is denied in the answer, it is error to direct a verdict without uncontradicted proof of this allegation of the petition.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2453, 2485-2581; Dec. Dig. § 537.*]

Error from Superior Court, Appling County; C. B. Conyers, Judge.

Action by J. L. Tuten, administrator de bonis non of the estate of G. W. Freeman, against J. L. Weaver and others, sureties on the bond of W. R. Lee, former administrator. Judgment for plaintiff, and defendants bring error. Reversed.

W. W. Bennett, of Baxley, for plaintiffs in error.

J. R. Thomas, of Jesup, and W. H. Watson, V. E. Padgett, and J. B. Moore, all of Baxley, for defendant in error.

EVANS, P. J. The action is by J. L. Tuten, administrator de bonis non on the estate of G. W. Freeman, against J. L. Weaver and others, sureties on the bond of W. R. Lee, the former administrator. From the pleadings and evidence it appeared that G. W. Freeman died intestate, and W. R. Lee was duly appointed administrator on his estate and gave bond, with the defendants as sureties; that the heirs at law filed a caveat to the return of the administrator, and upon the issue made thereon the court rendered a judgment showing a net amount in the hands of the administrator due to the estate, in the sum of $1,990.21. The heirs at law cited the administrator to a settlement, and upon the hearing it was adjudged that the administrator had in his hands the sum of $1,990.21, which sum he was ordered to distribute among the distributees of the estate of G. W. Freeman; and subsequently W. R. Lee was discharged from the office of administrator, and letters of administration de bonis non on the estate of G. W. Freeman were duly issued to the plaintiff. A verdict was directed for the plaintiff in the sum of $1,990.21. Whereupon a motion for a new trial was made, which being overruled, the defendants excepted.

The plaintiff tendered in evidence the following exemplifications from the records of the court of ordinary: A judgment reciting that John Freeman, as guardian for the distributees, had caveated the annual return of the administrator, and that the ordinary had heard evidence and had made an account stated, wherein the various amounts collected by W. R. Lee were charged against him and the various amounts allowed as credits were stated, leaving a balance in his hands of $1,990.21; a petition of the guardian of the distributees of the estate, praying that W. R. Lee, administrator, be cited to a settlement, the citation issued by the ordinary on this petition, entry of service on the administrator, and the

judgment rendered; an application by the guardian of the distributees against W. R. Lee, administrator of G. W. Freeman, praying his removal as such on the ground of waste and mismanagement, citation and entry of service, and the judgment removing the administrator. To the exemplification from the records the following certificate was attached: "I, Jas. S. Patterson, ordinary and an ex officio clerk of the court of...