Kahrs v. Kahrs , 115 Ga. 288 ( 1902 )

Fish, J.

1. There is no merit in the assignment of error in the exceptions pendente lite, to the effect that the court erred in allowing John H. Kahrs, as administrator with the will annexed of Diedrieh Kahrs, to be made a party plaintiff to the action; for the reason that it nowhere appears what objection, if any, was made by the defendants to the granting of the order making him such party, when it was taken. The record discloses that they had ample opportunity to object, had they seen fit to do so, as they were called upon by a rule nisi to show cause why he should not be made such party plaintiff. The bilí of exceptions states that the “rule absolute” was granted after argument,but what objection was urged in the argument against the granting of the “rule absolute” is not stated.

2. Our ruling upon this assignment of error- disposes of the complaint, made in the motion for new trial, that the court erred in striking the first paragraph of the answer of Nicholas Kahrs, which was, in substance, that Diedrieh Kahrs died testate and that John H. Kahrs fraudulently procured letters of administration to be issued upon the estate. The answer was stricken after the order had been granted making John H. Kahrs, as administrator with the will annexed, a party plaintiff; and whether or not, as an abstract proposition, a temporary administrator, when a party to a case, can be succeeded therein by a permanent administrator with the will annexed, the defendants here were concluded by the order, which was granted without objection by them, permitting this to be done. As the suit was then proceeding in the name of the administrator with the will annexed, it is immaterial whether or not he had been properly appointed temporary administrator.

3. As appears from paragraphs 11, 12, 13, 14, and 15 of the answer of Nicholas Kahrs, he claimed to have acted as the agent of Diedrich Kahrs from May 22, 1869, to January 3, 1899; that, although Diedrich died in 1887, his will provided that defendant should continue to act as agent of the testator until the youngest child should become of-age, which occurred on January 3, 1899, and that the executors 'of the testator and his children had recognized and dealt with defendant as the continuing agent of Diedrich since his death; that from 1869 to 1899 defendant had paid Died-rich and his executors the sum of $68,823.86 ; that defendant was entitled to twenty per cent, as commissions on this sum, for which he prayed judgment, on a general accounting. The plaintiffs made a written motion, which was in the nature of a special demurrer, to strike so much of this answer as sought to plead as a set-off the sum which Nicholas Kahrs claimed to have paid the plaintiffs’ testator and his executors, upon the ground that the answer failed to set forth an itemized statement or bill of particulars, definitely showing the time of payments and the various amounts paid, respectively, to Diedrich and his executors. The court granted an order striking this portion of the answer, unless'defendant should amend by attaching a bill of particulars. No such amendment was made. The exception by the defendants to this ruling of the court can not be sustained. The plaintiffs had the right to call for an itemized statement of the various amounts paid, showing when and to whom they were paid. “ Every plea of set-off must set out the demand as plainly as if sued on” (Civil Code, §5084), “and in every case where the plea of set-off shall be filed, a copy of the set-off shall be filed at the time of filing the answer” (Rule 11, Superior Courts, Civil Code, § 5642). Moreover, “A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made, is insufficient ; and if advantage is taken of its defects by proper demurrer, it should be stricken, unless amended.” Wortham v. Sinclair, 98 Ga. 173. Another assignment of error was upon the ruling of the court, that defendant, Nicholas Kahrs, could not recover for any services rendered as agent prior to four years before the commencement of the plaintiffs’ action. As the whole defense of set-off was properly stricken, for the reasons above stated, it can make no difference whether the judge erred in this ruling or not. Defendants further complain that they had in court, when the case was tried, a bill of particulars which they were ready to attach to the answer, and would have attached to the same but for the ruling of the court on the question of limitation. No offer was made, however, to amend the answer by attaching the bill of particulars, and we can not see that the reason given for failure so to do constituted a valid excuse for the omission.

• 4. There was no demurrer to the petition; no question of misjoinder of parties; the plaintiffs proved the case as laid; the answer as a whole failed as a defense, and there was no error in directing the verdict, or in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concurring, except Lewis, J., absent.