Crockett v. Mitchell , 88 Ga. 166 ( 1891 )

Judgment affirmed.

An equitable proceeding was brought December 3, 1889, by Mrs. Mitchell, as administratrix of D. W. Mitchell, against Mrs. Crockett. The defendant’s denmrrer was overruled. Upon the close of the testimony the court directed a verdict in favor of the plaintiff for the balance claimed to be due on the note sued on. The defendant excepted for error in overruling the demurrer and in directing the verdict.

The petition alleged: P. R. Kittles in his lifetime executed to plaintiff a promissory note for $210.10, dated December 12, 1878, which note was for indebtedness of Kittles to D. W. Mitchell in his lifetime, and is now the property of the estate of the latter. Kittles while in life, December 6, 1882, indorsed on the note with his own hand a payment of $100 and then requested petitioner to sign the same, which she did as administratrix. On November 1, 1887, Kittles died intestate, leaving as his only heir the defendant who afterwards manned Crockett. After the death of Kittles she took administration of his estate, and on March 16, 1889, obtained from the court of ordinary letters dismissory from the administration. After she had become administratrix of Kittles, petitioner turned the note over to her attorney to collect, but did not know it was of any importance to inform -him that the indorsement on the note was written by Kittles, supposing at the time that any credit on a note made a new starting point for the statute of limitation. The attorney, not knowing that the payment had been indorsed on the note by Kittles, but supposing that it had been written by petitioner, regarded the note as barred on its face and therefore as no bar to the obtaining of letters dismissory, and made no objection thereto; otherwise petitioner by her attorney would have objected to the dismission until the note had been paid. After paying up all other indebtedness of Kittles and all the expenses of administration and the year’s support allowed defendant from his estate, there is a large amount of real and personal property in the hands of defendant who, being tbe only heir at law, never bad dower assigned ber, but even with dower taken from tbe realty there is a large amount of realty and personalty left in ber bands, many times more than tbe amount due on tbe note, etc.

Dell & Wade, by brief, for plaintiff' in error,

cited Code, §§3126, 3121, 2548, 3094; 28 Ga. 117, 120; 70 Ga. 167, 794; 63 Ga. 494, 628; 22 Ga. 60; 23 Ga. 366; 15 Ga. 103.

W. Hobby, by Harrison & Peeples,

cited Code, §§2934, 2935, 2606, 2531, 2534, 2467, 3152; 49 Ga. 441; 66 Ga. 531; 59 Ga. 529; 20 Ga. 147.

The demurrer was upon the grounds that under tbe. statements of tbe petition tbe plaintiff is not entitled to tbe relief prayed; she is estopped by tbe judgment of dismissal, and under tbe allegations is not entitled to have that judgment set aside; no sufficient cause has been shown for ber laches: and she is barred by tbe statute of limitations.

TJpon tbe trial tbe plaintiff introduced tbe note signed by Kittles, dated December 12, 1878, payable to ber as administratrix, or bearer, and tbe indorsement upon it wbieb was: “Deceived on within note $100, this December 6,1882. M. B. Mitchell, admx.” It was shown that this indorsement was written by Kittles when he made tbe payment and was then signed by Mrs. Mitchell at bis request; that be died about November 1, 1885, leaving as bis sole beir bis widow, tbe defendant, who obtained letters 'of administration upon bis estate on January 27,1886, and letters dismissory on March 16, 1889; and that after the payment of tbe debts of tbe estate and expenses of administration she bad received all tbe balance of the property of tbe estate, which was largely in excess of tbe amount of tbe debt sued on. No testimony was introduced by tbe defendant.