Opinion
34293.
DECIDED OCTOBER 16, 1952.
Trover; from Bulloch Superior Court — Judge Renfroe. July 29, 1952.
B. H. Ramsey Sr., W. G. Neville, Wm. J. Neville, J. P. Dukes, W. Roscoff Deal, for plaintiff in error.
Fred T. Lanier, Robert S. Lanier, George M. Johnston, contra.
1. The motion to dismiss the bill of exceptions is without merit, and is denied.
2. A petition in trover, in which the plaintiff seeks to recover certain described personal property from the defendant, as administrator, together with a certain sum as hire for the use of such property from the date of the death of the deceased, cannot be maintained before the expiration of 12 months from the qualification of such administrator, and the present petition was properly dismissed.
DECIDED OCTOBER 16, 1952.
On January 5, 1952, Mrs. Leroy Byrd (hereinafter called the plaintiff) filed in Bulloch Superior Court her petition in trover against Gordon Riggs (hereinafter called the defendant) as temporary administrator of the estate of Mrs. Ida Byrd, deceased, in which she set up that the defendant was in possession of certain described articles of personal property of the value of $1859.35, to which she claims title, and which the defendant had refused to deliver to her on demand, or pay her the profits thereof, and that the yearly value of such property is $2000. The plaintiff made affidavit under Code § 107-201 to obtain bail, in which it was stated that said property was the "personal property of Mrs. Ida Byrd, in her home . . at the time of her death on May 26, 1951," and that the same was "owned by Mrs. Ida Byrd, deceased, at the time of her death, and all of which is of the total value of $1859.35, and that the said property which is now in the possession, custody or control of the said Gordon Riggs, as said administrator," and that the plaintiff "claims reasonable hire for the above described property the sum of $2000 per year, beginning at the time of the death of Mrs. Ida Byrd."
The defendant demurred to this petition as being insufficient and setting out no cause of action against him, and because the same is "fatally defective in that the suit is brought against a temporary administrator."
The court, on July 26, 1952, rendered this order: "The above and foregoing demurrer coming on regularly to be heard at this time, after consideration of same, ordered that said demurrer be and the same is hereby sustained. Plaintiff is given until 10 a. m., July 28, 1952, to offer amendment."
On July 28, 1952, the plaintiff offered an amendment in which she struck Gordon Riggs as temporary administrator and added Gordon Riggs as permanent administrator "of the estate of Mrs. Ida Byrd, deceased, for the reason that the said Gordon Riggs qualified as permanent administrator," of the estate . . on July 21, 1952, so that said cause shall proceed against Gordon Riggs as permanent administrator," and also set up that the personal property described in the petition was in the possession and control of the deceased at the time of her death but was the property of the plaintiff and not of Mrs. Ida Byrd. The court allowed this amendment, subject to objection. The defendant demurred generally to the plaintiff's petition, as amended, on the ground that it was an attempt to amend a void petition, being a pending action against a temporary administrator, and because it was an attempt to change a pending suit by substituting Gordon Riggs as permanent administrator for Gordon Riggs as temporary administrator, which is not authorized by law. The trial judge sustained this demurrer and dismissed the petition.
1. ( a) A motion is made to dismiss the bill of exceptions in that the judgment of July 26, 1952, was a final judgment and that judgment not being excepted to, the bill of exceptions should be dismissed. It appeared from this order that the plaintiff was given until July 28, 1952, to offer an amendment, which she did. Had the plaintiff not offered this amendment, the judgment of July 26, 1952, would have been a final disposition of the case, but when the plaintiff complied with the order and offered the amendment, which the court allowed, subject to objection, further action by the court was necessary. When the amendment was so allowed and the defendant filed his general demurrer to the petition, as thus amended, the trial judge rendered judgment thereon, sustaining this demurrer and dismissing the plaintiff's petition. This was the final judgment in this case, and was properly excepted to as such. See Lane v. Murray Company, 63 Ga. App. 844 ( 12 S.E.2d 492), and cit.; McConnell v. Frank E. Block Co., 26 Ga. App. 550 ( 106 S.E. 617), and cit.
( b) The supplement to the motion to dismiss setting up that there is no exception to a final judgment, in that the exception is to the order sustaining the general demurrer to the petition, as amended, is not meritorious. The principle that an assignment of error to an order sustaining a general demurrer to and dismissing the defendant's answer as amended is not an exception to a final judgment and disposition of the case, is not applicable where the exception is, as here, to the sustaining of a general demurrer to the plaintiff's petition, as amended. The motion to dismiss the bill of exceptions is denied.
2. The plaintiff, in a proper case, may institute an action of trover against an administrator, where he wrongfully withholds property belonging to the plaintiff, before the expiration of twelve months. See Adder Machine Co. v. Hawes, 152 Ga. 826 ( 111 S.E. 188); s. c., 28 Ga. App. 480 ( 111 S.E. 746); Atkinson v. Universal Credit Co., 51 Ga. App. 517 ( 180 S.E. 926); Commercial Bank of Crawford v. Pharr, 75 Ga. App. 364 ( 43 S.E.2d 439).
However, where a plaintiff not only seeks to recover certain personalty as belonging to her and of which the deceased had possession when she died, but seeks in the trover action to recover a money judgment against the defendant, as administrator, for hire for the use of the personal property sought, the provisions of Code § 113-1526 that "No suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of twelve months from his qualification . ." become applicable and where such a proceeding is brought within seven days after the appointment and qualification of the defendant as permanent administrator of the estate of the deceased, this appearing from the face of the petition in trover, as amended, the trial court properly dismissed the same. In the present case, the plaintiff seeks to recover $2000 against the defendant as the administrator of the estate of Mrs. Ida Byrd, deceased, for the use of the personalty since the date of his decedent's death. This constitutes an action to recover a debt against the estate of the decedent. The principle announced by the above cases, wherein the plaintiff waived any right to recover a money judgment or for hire and sought merely to recover possession of the specific personal property claimed, is not applicable here.
As to personal property wrongfully obtained and retained by a temporary administrator, we see no reason why trover would not lie against him. See Yeldell v. Shinholster, 15 Ga. 189; Bagley v. Robertson, 57 Ga. 148; Knight v. Knight, 75 Ga. 386; Watkins v. Madison County Trust Deposit Co., 24 Fed. 2d, 370; Chapman v. Hamilton National Bank, 51 Ga. App. 74 ( 179 S.E. 650); Code, § 113-1207.
In the case at bar it was not improper to amend by setting up that such temporary administrator had been appointed the permanent administrator, and proceeding against the permanent administrator in lieu of the temporary administrator. In neither instance was the suit proceeding against individuals, but was proceeding against the temporary and permanent administrators in their respective capacities as to the same subject matter.
It follows that the plaintiff was not entitled to proceed with the present action against the defendant administrator, and that there was no error in dismissing the case, because the same had been instituted before the expiration of twelve months in violation of Code § 113-1526, supra.
Judgment affirmed. Townsend and Carlisle, JJ., concur.