McNulty v. Marcus , 57 Ga. 507 ( 1876 )

Bleckley, Judge.

1. The bond given to the ordinary by an administrator for the faithful execution of his trust, is the personal contract of the administrator. A suit upon it must necessarily be against him personally, not against him in his representative character. To recover in the suit, a breach of the bond must be established; and a judgment for the plaintiff is conclusive evidence that a breach was established. The only judgment for the plaintiff, legally possible, is a judgment de bonis propriis. If, in writing it up, representative terms be added to the defendant’s name, they are mere description of the person, and are utterly impotent to modify the legal effect of the judgment. The dismissal of the action as to the administrator’s sureties, left it pending against him alone, but it was still on the bond, and on the bond, there was a recovery by the plaintiff as to the then sole defendant. In entering judgment against him, he was described as administrator, but that did not, and could not hinder it from acting directly upon his own property. There was no direction in the judgment that the sum recovered should be levied of the goods, etc., of the intestate, nor could such a direction have been legally incorporated.

2. There is no suggestion that the creditor for whose benfit the bond was sued to judgment was not a real, bona fide creditor of the intestate, or that the amount recovered was more than was his due. The judgment cannot be pronounced void because it does not appear that a prior judgment de bonis testatoris had been rendered, and a devastavit established. That was matter to be insisted upon in resistance to the action ■upon the bond. By not insisting upon it, the administrator waived it. By suffering judgment to go against him, in a suit upon the bond, he made the debt his own, as much as if he had given his individval note for it, and then suffered the note to be sued to judgment without pleading want of consideration or any other defense. There being no fraud alleged, his creditors are bound, as well as himself. He is to be presumed to have submitted rightfully to the liability which the judgment imposes. The fair inference is that he had either wasted the assets of the estate, or still had them, to an amount sufficient to indemnify himself. The presumption of sufficient assets is raised by giving a note: 25 Georgia Reports^ 242. Surely the presumption is much strengthened by suffering a judgment to be recovered on the administrator’s bond. Besides, in this case, assets to the amount of the judgment were expressly admitted. It is to be borne in mind that the sureties upon the bond are not affected, the action as to them having been dismissed. The case thus stands clear of any conflict with 52 Georgia Reports, 35, even if it were conceded that otherwise conflict would exist.

3. In respect to the point that the judgment was based on the vei’dict of a jury, rendered in the absence of an issuable defense filed on oath, this case is distinguishable from that reported in 55 Georgia Reports, 475. In that case there was no consent by the defendant to the verdict or to a trial by jury. It was stated in the record of that case, or at least clearly inferable, that the trial was ex parte, and took place in the absence of defendant’s counsel. Here, on the contrary, the defendant was present and was a witness, giving testimony to the jury. He was also represented by counsel, and the amount of the recovery was agreed upon. The verdict was thus matter of consent. There was an implied waiver of the defendant’s right to have the court render a judgment without the intervention of a jury. To say the least of a verdict rendered under such circumstances, it is equivalent to a confession of judgment.

4. It seems that a second suit was commenced on the administration bond, after the first had terminated as above disclosed — that is, after dismissal as to the sureties, and after judgment against the principal. This second suit was entered-on the bench docket “settled,” but the like entry did not appear on the minutes. A mere docket entry of “settled,” cannot be relied on to extinguish a prior judgment for the same debt. The settled suit was, when brought, doubtless intended to reach .the sureties on the bond, and if they or the principal paid any part or the whole of the debt to get that suit settled, the fact of such payment should have been proved. It is not to be inferred from the docket entry. The settlement of the second suit is entirely consistent with leaving the judgment already obtained in the first, unpaid and in full force. For this reason, the entry, if transferred to the minutes, would not, by itself, have established anything to the discredit of that judgment.

The result is, that the fund in controversy was properly disposed of.

Judgment affirmed.