Empire State Chemical Co. v. Shubrick

Beck, P. J. (After stating the facts.) 1. Considering all.the-recitals of fact in the petition upon which the judgment was rendered on which execution issued in favor of the plaintiff in error, it was clearly a suit against Charles,I. Reynolds as administrator of E. T. Shubrick, and in his representative capacity. “The cases which have heretofore been decided by this court, holding that the word as gave character to the action, were cases in favor of administrators, and not against them: 11 Georgia, 599; 16 Ibid. 190. Moreover, in each of these cases the action was predicated upon a contract with the administrator himself, and not upon a contract with the intestate. There was, therefore, a legal possibility for the cause of action to be either a personal right or a representative right. Here, on the contrary, is a case in which the declaration is not only a nullity, but a flat absurdity, unless it is construed to be against the administrator in his representative character.” Jennings v. Wright, 54 Ga. 537. %. Having held that the suit clearly was one against the administrator in his representative capacity, we are of the opinion that the verdict should be construed to be one against Charles I. Reynolds in his representative capacity as administrator. Verdicts are to receive a reasonable intendment, and we can look to the petition in construing the same, as has been done more than once in cases decided by this court. [554] 3.' Having held that the verdict is to be construed as one against Reynolds in his representative capacity, it was competent to amend the judgment so that it would follow the verdict, and then the execution so that it would conform to the judgment. It may seem that this is allowing the plaintiff to go a long way toward perfecting his judgment so that the levy would not fall; but the steps taken to go this distance follow each other naturally, and are in due sequence. The court should have allowed the. amendment, and the refusal to do so was error; and his final judgment dismissing the levy was error. Judgment reversed. All the Justices concur.