Sawyer v. Cheney

Bleckley, Judge. A trustee was sued, as such, in a justice’s court. Judgment went against him for over fifty dollars, to be levied of the trust estate. He entered an appeal to the superior court by filing a pauper affidavit, and without paying cost or giving bond and security. A motion was made in the superior court to dismiss the appeal, because in the affidavit the trustee had sworn to his own poverty, and not to the poverty of the trust estate. (30 Ga., 964; 3 Kelly, 254-5.) The trustee proposed to amend the affidavit, (19 Ga., 33,) and the 370 court heard evidence as to whether the affidavit had been written as the deponent really intended, or whether his intention was to depose to the poverty of the trust estate, and not to his own personal poverty. From the evidence, the court came to the conclusion that there was no mistake, and thereupon denied the application to amend, and dismissed the appeal. The trustee excepted. The Code (section 3622) declares that “Executors, administrators, and other trustees, when sued as such, or defending solely the title of the estate, may enter an appeal without paying costs and giving bond and security, as hereinbefore required; but if a j udgment should be obtained against such executor, administrator, or other trustee, and not the assets of the estate, he must pay costs and give security, as in other cases.” The case is within this provision, and hence the affidavit was unnecessary. The application to amend it was needless, and the ruling of the court thereon immaterial. As the judgment in the justice’s court was taken against the trust assets, and not against the trustee, personally, the trustee had a right to appeal without paying costs and giving bond and security, and without rendering any reason, by affidavit or otherwise, for the omission. The case in 30 Ga., 964, arose before the adoption of the Code, and under.a statute which did not include other trustees with executors and administrators in dispensing with the ordinary requisites in entering appeals. It was error to dismiss the appeal in the present case. Judgment reversed.