Steinberg v. Freedman

Russell, Chief Justice. This case is before this court on certiorari. The facts sufficiently appear in the report of the decision under review. 55 Ga. App. 298 (190 S. E. 187). 1. Under the facts of the case, the judgment against the executrix in her representative capacity was conclusive upon her as to the sufficiency of assets to pay the debt. Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. R. 250); Porter v. Rountree, 111 Ga. 369 (36 S. E. 761); Staten v. Cox, 41 Ga. App. 763 (154 S. E. 721). 2. In the present later suit by the creditor, based upon such judgment, to recover a judgment against the executrix as an individual, the defendant having admitted in open court “that there was ample property in the estate to satisfy the execution” issued upon the former judgment, and it appearing from the record that without sufficient reason she had failed and refused to pay it, the judgment in favor of the plaintiff was demanded, regardless of the entry of nulla bona. Groves v. Williams, 68 Ga. 598 (3) ; King v. Johnson, 96 Ga. 497 (2) (23 S. E. 500) ; Clement v. Hawkins, 96 Ga. 811 (22 S. E. 951). 3. Such being the case, the question is not involved (as it was thought to be at the time the certiorari was granted) as to whether the entry of nulla bona was conclusive of devastavit, as held by the Court of Appeals; although it would seem to be only prima facie evidence thereof, since it refers only to property in the one county and of a species which is subject to levy. Code, § 39-113; Thornton v. Lane, 11 Ga. 459, 526; Hunter v. Burson, 168 Ga. 59 (6), 63 (147 S. E. 53) ; Bishop v. Pinson, 33 Ga. App. 269 (3) (125 S. E. 880) ; Cox v. Staten, 39 Ga. App. 294 (147 S. E. 137) ; Hanby v. First National Bank of Atlanta, 51 Ga. App. 89 (179 S. E. 749) ; 23 C. J. 804, § 892. [362] No. 11842. June 14, 1938. Reuearino denied July 11, 1938. Maurice Steinberg and Curry <& Curry, for plaintiff in error. Lee, Congdon <& Fulcher, contra. 4. The judgment of the Court of Appeals was not erroneous for any reason assigned. Judgment affirmed. All the Justices concur. Grice, J., concurs in the result.