Maryland Casualty Co. v. Arnold , 51 Ga. App. 562 ( 1935 )

Bkoyles, C. J.

1. “In an absence of a judgment fixing the liability of the administrator, or a devastavit by him, the sureties on his bond can not be sued in the first instance, without joining the administrator, unless the latter is beyond the jurisdiction of this State, or is dead and, his estate unrepresented, or is in such position that an attachment may be issued against him. (Italics ours.) Weaver v. Tuten, 138 Ga. 101, 103 (74 S. E. 835).” Hunter v. Burson, 168 Ga. 59 (3) (147 S. E. 53).

2. It follows from the foregoing ruling that where the surety on an administrator’s bond is sued alone, and no judgment fixing the liability of the administrator, or a devastavit by him, has been rendered, and it appears from the petition that the administrator is dead, the petition is subject to be dismissed on demurrer unless it alleges that his estate is unrepresented. Especially is this true where (as in the instant case) a ground of the demurrer specifically points out that the petition fails to allege whether the estate of the deceased administrator was unrepresented at the time the suit against the surety on his bond was filed.

3. Under the preceding rulings and the facts of this case, the court erred in overruling the demurrer to the petition; and the further proceedings were nugatory.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.