Beall v. Hutcheson

Beck, J. 1. Objections to the return of the appraisers, setting aside a year’s support upon a widow’s application therefor, having been filed, the case was carried by appeal to the superior court, and there, upon trial of the same, a verdict was returned in favor of the applicant for a given amount; and thereupon a judgment was rendered as follows: (After stating the case) “The jury having returned a verdict in the above-stated ease for $101.38, it is thereupon considered, ordered, and adjudged by the court that the plaintiff have and recover of the defendaut, James Beall, Admr., etc., the sum of $101.38, principal, and $9.G5, costs of suit.” ■ Held, that such a judgment was in terms a judgment against James Beall individually and was not binding upon the assets of the estate of the administrator’s decedent. Freeman v. Binswanger, 57 Ga. 159; Lemon v. Thaxton, 59 Ga. 706. 2. Where in a suit brought in the name of the ordinary against the administrator and the surety on his bond, as for a devastavit, the only evidence introduced to establish the fact of the alleged devastavit was an execution based upon the judgment set forth in the preceding headnote, with the return of nulla bona thereon, it was error for the court to direct a verdict for the plaintiff against the administrator and the surety, even though it was shown that sufficient property of the estate [67] of the decedent had gone into the hands of the administrator to pay the amount of the judgment and that the administrator had refused to pay over to the widow the amount of the judgment. Forrester v. Tift, 84 Ga. 595 (10 S. E. 1015). Submitted January 16, Decided July 17, 1908. Action on bond. Before Judge Edwards. Haralson superior court. March 28, 1907. Jones & Hutchens, for plaintiffs in error. W. F. Brown and Head & Head, contra. 3. The court did not err in allowing an amendment to the petition in the suit brought in the name of the ordinary, adding the names of the widow and her minor children as usees. Judgment reversed. All the Justices concur.