Fulcher v. Mandell , 83 Ga. 715 ( 1889 )

Simmons, Justice.

1. The court did right in granting a new trial in this case. He held on the trial of the case that the judgment was dormant as to all the propei'ty of the defendant except that involved in the claim case. His idea seemed to be that the statute ran against the judgment during the pendency of the litigation in the claim case. Npon the motion for a new trial, he reversed this ruling and decided that the judgment was not dormant. In this we think he was clearly right. The prosecution of this claim in the courts for over six years was such a public act on the part of the plaintiff in the judgment that it prevented the statute from running pending the litigation. In the case of Gholston v. O’Kelly, 81 Ga. 19, all the authorities on this question are collated, and that decision and the cases there cited show that the judge below was correct in holding the judgment in this case not dormant. See especially the case of Water Lot Co. v. Bank, 53 Ga. 30, wherein the court say that any proceeding by the plaintiff showing that he claimed his judgment to be a subsisting one, entered of record (as, for example, putting in his fi. fa. to claim money, prosecuting a claim, etc.), is a substantial compliance with the act of 1825, so as to prevent the judgment from becoming dormant.

2. The court did right in granting a new trial on the ground, also, that he allowed Fulcher, the administrator, to testify in his own behalf concerning a debt dne him by Mr. and Mrs. Fulcher. In the case of Finch v. Creech, 55 Ga. 124, this court held that “ an administrator, though a creditor of intestate, is a competent witness to show by debts of the estate other than his own, the necessity to sell land, and to show his acts and the state of his account since the administration, hut not to prove any debt due to him from the intestate arising from a partnership between them, or otherwise.” According to this case, Fulcher, the administrator, was an incompetent witness to testify concerning any debt due him by Mr. or Mrs. Fulcher, hut he was competent to testify about the debts of others, or upon any other matter which did not bring his interest into antagonism with that of the estate.

3. The court was right also in overruling the demurrer to the scire facias. While it is true, under our code,. that the plaintiff could have levied his execution upon any property of the intestate which he could find, without making the administrator a party, yet the administrator might have assets in his hands which could not he reached by levy, and therefore the plaintiff' would have the legal right to make him a party by scire facias, so as to bind the administrator by the judgment in case he did have assets upon which the execution could not he levied. Upon this subject see the reasoning of Warner, C. J., in the case of Shepherd v. Ryan, 53 Ga. 563. While the plaintiff in a judgment has the legal right to make an administrator a party, the administrator is not deprived of any of his rights by such a proceeding. In this kind of proceeding he can show any fact to relieve himself that he could show if the suit had originally been commenced against him upon the judgment. He can plead any of the pleas that he could have pleaded if the original suit had been brought against him as administrator ; and if he could sustain his pleas by proper proof, the judgment would be rendered against him only as if he had been sued originally. In this particular case we think he would be entitled to show that he had no assets belonging to the estate of the intestate, or that he had fully administered them, or he could show by proper testimony that the assets which he had in his hands were taken possession of by his intestate as the sole heir of his wife, and that the intestate had not paid the debts of his wife before he took possession of them, and that there are outstanding debts against the wife sufficient to exhaust what assets he had in his hands.

Nor do we think that he is estopped from making this proof by his inventory or return as administrator. In his inventory or return he alleges that the assets belong to Mr. Fulcher, his intestate. That return may be perfectly consistent with the fact that his intestate got possession of them by reason of being the sole heir to his wife and died in possession of them. The husband cannot get a clear title as against creditors to the assets of his wife, unless he pays her debts. If, therefore, in this case the husband did take possession of the assets of his wife, and failed to pay her debts, her creditors would be entitled to be paid out of the assets, in preference to the husband’s creditors. If his administrator can show by his own oath that the wife owed other debts than the one to himself, and can show by other testimony that she owed him and was liable for this debt, we think it should be paid out of her assets before the debts of her husband, and that the administrator would notbe estopped from showing that the property in his hands was really the property of the wife, and subject to her debts, although in his return or inventory to the ordinary he returned it as the property of the intestate.

With these principles settled, we think there will be no difficulty on the next trial. Judgment affirmed.