Walker & Taylor v. Shannon , 21 Ga. App. 39 ( 1917 )

Jenkins, J.

1. A judgment against an administrator, in an action on an alleged debt of his intestate, when the defendant has failed to plead a want of assets, is conclusive as to the question of a sufficiency of assets to pay the debt. As to a surety upon the administrator’s bond, however, the judgment is not conclusive upon such question, but is ■ prima facie evidence only; and when sued upon the bond the surety-may plead and prove a deficiency of assets in the hands of his principal liable to the payment of the debt. Gibson v. Robinson, 90 Ga. 756 (16 S. E. 969, 35 Am. St. R. 250) ; Whiddon v. Williams, 98 Ga. 310 (24 S. E. 437).

2. Thus, in a suit against the sureties on the bond of an administrator, prima facie proof of a devastavit may be made by introducing in evidence' the judgment against the administrator, and showing by proper entries upon the execution issued thereon that there is no property upon which to levy. Worthy v. Battle, 125 Ga. 415 (54 S. E. 667).

3. But where the judgment which is the foundation of the suit appears to have been obtained, not against the administrator, but against the decedent in his lifetime, against whom execution had issued, and where it appears that the first notice received by the administrator as to the claim was more than two years after his qualification as such, and nothing is shown to indicate that - the funds coming into his hands were not disbursed according to law, or that waste was committed,-- it was not error for the trial judge to grant a nonsuit.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.