Woodard v. Harris , 138 Ga. 751 ( 1912 )

Atkinson, J.

1. The judgment against which it was sought to enjoin, and in connection with which proceeding the bond involved in the present suit was given, was held, in Harris v. Woodard, 133 Ga. 104 (65 S. E. 250), to be against W. H. Harris individually, and not as executor of the will of H. C. Harris.

2. A petition by W. H. Harris to enjoin against the enforcement of the judgment referred to in the preceding note, in which there was nothing tending to suggest that it was brought in a representative capacity, unless it be the words “Exr. will of H. C. Harris,” which appear only once, and then immediately following the name of plaintiff, under the facts of this case is to be construed as a suit by W. H. Harris individually.

3. When in such a suit an injunction was granted on condition that the plaintiff execute a bond conditioned to pay the defendant such amount as might be found in his favor on the judgment referred to, and for such purpose a bond was given, signed “W. H. Harris, Executor, by Louis L. Brown, attorney of record,” W. H. Harris was liable individually upon such bond, as well as his security.

4. In a suit on the bond described in the third headnote, it was error to admit, over appropriate objection, the will of H. C. Harris, and certain testimony to the effect that the note was for the benefit of the estate and the bond was given in a representative capacity, and to direct a verdict in favor of the defendants.

5. There is nothing in the decision of Harris v. Woodard, supra, that is in conflict with the ruling now made.

Judgment reversed.

All the Justices concur.