Byne v. Anderson , 67 Ga. 466 ( 1880 )

JACKSON, Chief Justice.

This cause comes before us on pleadings so uncertain, and a record so incomplete, that it is difficult to apply legal principles with any degree of accuracy to it. It is equally troublesome so to probe through the unknown tissues and arteries of evidence and want of evidence as to touch with any degree of certainty the spot where justice lies concealed from our view. Three cases are consolidated and tried together. What interest Mary Anderson has in two of them the record nowhere shows. What part of the estates of either of the two decedents of which Byne was the administrator, and for an account of which he is sued in these rules by Mary Anderson, she inherited, nowhere appears. What these rules were, what accounting was demanded by them, what devastavit is alleged in them (for the judge in his charge speaks of the action as being for a devastavit), does not appear, because the three rules are all lost or mislaid, and neither is in the transcript sent up to this court, but only the naked statement of the parties, and appeal on rules from the court of ordinary, and hence a most important fact in the pleadings cannot be ascertained, to-wit: When did the devastavit complained of arise as alleged in these lost rules ?

It would seem that without regard to errors of law in respect to testimony and charges and failure to charge, alleged and assigned, that as Byne was called to account in three capacities, and the jury found forty-five hundred dollars in favor of Mary Anderson against him in all, that the verdict is not supported by evidence-, there being no evidence in respect to two of the cases whether she took all he owed the estates, or' half, or one-tenth thereof. No man on earth, not the most perfect accountant, nor the most expert arithmetician and bookkeeper, can take this record and cipher how these parties stand. In no view Of the law can it be done. Whether the returns were in or out, as 'returns legally made out, filed and passed to judgment and record by the ordinary; whether commissions be or be not allowed upon them ; whether the statute of limitations of 1869 be or be not applied to the acts of administration prior to 1865 ; whether the law in regard to Confederate notes and bonds was properly ruled or not; whether the jury found for or against and without evidence on that issue; still all is uncertain, and the legal result impossible to be ascertained-, because - the plaintiff’s aliquot part of what the’ administrator owed is nowhere disclosed.

The case must, therefore, go back for a new -trial, because this record does not furnish evidence to show the true balance due to plaintiff from defendant in the three suits tried together, and the assignment-of error that the verdict is not supported by the evidence must be sustained.

As it is to be again tried, it is our duty to state our views of the law of- the case on the various points made, so that the law so'determined now may be applied on the new trial.

1. The returns were not in evidence, or admissible as returns and judgments of the court of ordinary, and thus prima facie evidence for -the administrator, and guardian, because the only legal evidence of such returns is an-exemplification from the records of the court of ordinary.

It is a court of record, and the judgments of such a court are ascertained by the record, and a copy of the record, under the certificate and seal of the court, is the best evidence — indeed the only evidence, except in cases of'the destruction by fire, or other disaster, of the record — of the judgment upon the returns which gives them the validity of returns, and makes them prima facie evidence in all courts, to be surcharged and falsified by proof, and thus, and thus only, rebutted. Code, §1823.

2. If returns are thus shown to have been made by the-first Monday of July, or by the end of the year, commissions are to be allowed ; otherwise not for the year of default, if he be cited to appear and does not show cause-for delay satisfactory to the ordinary. Code, §1827.

3. The entire court is of the opinion that if the rules, which constitute the pleadings or declarations in a case of this sort, show on.their face that the devastavit occurred prior to the first of June, 1865, then Mary Anderson .would be barred by the act of 1869, unless she showed fraud in the conduct of the guardian,-.under the rulings of this court in 62 Ga.,\2% 574.; but the rules are not here, and we do not know what allegations are. in them. Those, cases decide that if suit be not brought in nine months, and fifteen days after the infant has attained majority, the-bar of the statute attaches, where the pleadings of plaintiff show an effort to make defendant liable for some particular act of nfismanagement occurring prior to the first of June, 1865. Here the new guardian could have sued a few months before th.e first of January, 1870, and did not sue until more than nine months and fifteen days after she could have sued, and therefore, upon the principles ruled in these cases, the old guardian, Byne, can plead the statute against; her and her ward, if the rules should show such allegations of mismanagement prior to June ist, 1865.

Unless the rules shall show such allegation of mismanagement, I do not see how the statute can bar this case without overruling 45 Ga., 478, and 57 Ib., 459. In the first of those cases, the infant attained her majority after the passage of the act of 1869, and in that year, and did not sue within nine months and fifteen days of that time; yet she was held not to be barred, because she called her guardian to account for a general settlement, and not for any particular act of devastavit before June, 1865. Unless, therefore, these rules should show that the old guardian, Byne, is called to account for mismanagement prior to June 1st, 1865, this is exactly that case, except that the new guardian was appointed in 1869, after the act of that year, in this case, while in that case the infant attained majority in 1869, after the date of the act. And Lake vs. Hardee et al., in 57 Ga., 459, follows Hobbs vs. Cody, in 45 Ga., 478.

It cannot be questioned, however, that there seems to be difficulty in harmonizing all the cases with the statute and with each other ; and both of my brethren think that the language of the statute in such case should be invoked and should rule. By an examination of that act it will be seen that it applies not only where the cause of action accrued before June ist, 1865, but where any mismanagement, not fraudulent, occurred prior to that date ; and certainly in the case at bar much, not to say most — far most, of the mismanagement of this trustee occurred in the matter of taking Confederate money for good notes, prior, of course, to first of June,1865, when the Confederacy and all its promises to pay had gone down together. That act, sections 5 and 8, reads as follows:

“ 5. That all actions against executors, administrators, guardians or trustees, which accrued prior to first of June, 1865, or which are predicated upon any alleged neglect or misconduct of any such executor, administrator, guardian or trustee, in the investment of trust funds in currency, bonds, or the like, without an order of court or other sufficient authority; or in the management of any trust estate which occurred prior to ist of June, 1865 ; or when the mismanagement or investment occurred or was made prior to that date, shall be brought by ist of January, 1870, if not already barred, and not after; and the right of action shall be forever barred, if not brought within that time ¡ provided, that no executor, administrator, guardian, or trustee, shall have the benefit of this act who has acted fraudulently and corruptly in the management of the trust estate,”

“ 8. That all cases of the character mentioned in any section of this act which have arisen, or in which the right or action of the liability has accrued, or the contract has been made since the ist of June, 1865, shall be controlled and governed by the limitation laws as set forth in the Revised Code of Georgia adopted by the constitution of this state.”

It will be thus seen that whatever the rules, if ever discovered or recovered or established by copies, shall show, an effort is here made to make Byne liable for acts of mismanagement by him prior to June ist, 1865, by the proof ; and there must have been pleading enough to authorize that proof. Practically, therefore, we cannot see any clear distinction between this case and Jordan vs. Ticknor et al., 62 Ga., 123-129; and as the act of 1869 seems to us to harmonize better with that ruling than with 45 Ga., 478, we adopt the former and follow it, if the two cannot consist and stand together.

The truth is that strict pleading was hardly resorted to in rules like these, and a wide latitude was given to the proof in all probability; and as the gist of the account and defalcation occurred prior to June ist,- .865, and proof thereof was made, and the main issue formed and fought on the question whether prudent business men took the Confederate currency in 1863-4 and 5 ; we must rule in this case that the bar of the statute of limitation of 1869, attached, unless the guardian and trustee acted fraudulently. We mean, of course, that it attached as to efforts to make Byne liable for mismanagement prior to the ist of June, 1865.

4. It is conceded that the court erred in admitting.the prior suits, on the bonds and allowing them to aid in lifting the bar of the statute.

5. The attorney’s fees ought not to be allowed if the •estate was mismanaged and a devastavit was committed ; but the charge complained of in the fifth ground seems to take that for granted. To that extent it is error.

6. In respect to the charge in regard to Confederate money, we see no error. 52 Ga., 600 ; 54 Ib., 291 ; Venable vs. Cody, this term.

The case before us is between Mary Anderson and Byne. No recovery was had by Mrs. Hayne, and as to any alleged errors which affected her only, we need say nothing, because they are wholly immaterial to the issues here and to those to be tried on the new hearing.

Taking the case altogether, we feel that a new trial must be awarded on account of the total absence of all evidence going to show the interest of Mary Anderson in two of the three estates, for which Byne was called to account, and errors in our judgment in respect to the statute of limitations of 1869 as applicable to a large part of the case. On the merits of the controversy we express no opinion as a new trial should be free from any views we may entertain of the evidence seen through the mazes of this confused record. Should the review of the case when again tried be invoked a second time by this court, it is hoped that a cleaner and clearer record be transmitted for our guidance; that lost pleadings be established; and issues be clearly made, so that the principles of law may be applied to the facts of the case with less difficulty and embarrassment,than those which have environed the case now made.

Judgment reversed.