Waters v. Hurst

Russell, J. In tbe opinion of .a majority of this court, the trial judge erred in overruling the defendant’s motion to set aside the judgment, made during the term in which the judgment was rendered. We are led to this view by the fact that, while the twelve months’ exemption from suit, which is accorded by law to representatives of estates of deceased persons, is, in a sense, a personal privilege, and may be expressly waived, a waiver can not be implied from a mere acknowledgment of service of a petition which does not contain an averment that there has been 'a waiver of the exemption. In our opinion, in .order to permit the issuance of a valid judgment against an administratrix upon an action brought within the period of twelve months, it must appear from the 249 record that the statutory exemption from suit has been waived. The petition in the present instance was fatally defective as the basis of a judgment against the administratrix, unless she had appeared and pleaded, because it did not contain any reason why the plaintiff could maintain the action in total disregard of the Civil Code, § 4015, which forbids such suits. If the defendant administratrix had entered upon the petition or incorporated in her waiver of service an express waiver of the twelve months’ exemption from suit, the action, under the ruling in the case of Emmett v. Dekle, 132 Ga. 593 (64 S. E. 682), could have proceeded. But by acknowledging service she did not commit herself to the admission that the petition set forth a valid cause of action; and, not having subsequently appeared and pleaded, she is not estopped from contesting that it is a good cause of action. The acknowledgment of service can not be extended beyond its express terms. Certainly waiver of the statutory exemption from suit accorded by law to administrators and executors must be evidenced by some affirmative action on the part of such representative. It can not be implied. Nor is this right, while in a sense a. personal privilege, identical with the personal element involved in the statute of limitations. Generally, the decision as to whether a de-, fendant will plead or decline to plead the bar of the statute of limitations affects only himself, whereas an executor or administrator acts solely in a fiduciary capacity, and his acts in this respect affect not only creditors, but legatees and heirs at law. Judgment reversed.