Bower v. Thomas , 69 Ga. 47 ( 1882 )

Jackson, Chief Justice.

In this case there is a bill of exceptions sued out against James M. Thomas as administrator of J. M. Thomas, deceased, alone, and a cross-bill of exceptions by him.

1. If the main bill of exceptions had brought the other defendants to the original suit before this court a new trial would be necessitated, because the verdict is for the defendants generally, and the plaintiffs certainly had the right to a verdict against them. But as the administrator of Thomas alone is brought here, the case here'is between the plaintiffs and him alone, and the. plaintiffs make no complaint in regard to the other defendants here, and no error as to them is assigned.

2. It becomes necessary, therefore, only to consider errors assigned as to him, the administrator, and the question is whether or not the suit was barred as to him under the facts, and whether barred or not turns on the points of law charged by the court, and to which exception is taken. The facts are that one Thomas was sued as executor, and on his plea being putin that he was not the defendant, altogether a different man was sued as administrator of the estate of the same decedent by amendment making him a party. On the law applicable to these facts, the court charged to the effect that the statute of limitations ran against the plaintiffs up to service on this administrator. It is very doubtful whether he could have been made a party at all.. It looks very much like making a new party. The estate on which he was administrator was sued for the first time when he was sued, and it seems clear that until that was sued the statute ran. Pie was made a party by an ex parte order, of which he had no notice, and the first notice that the record shows on him is the service of the writ on him. We cannot say, therefore, that the statute did not run in his favor up to that time; all reason favors the conclusion that it did and ought, and no authority to the contrary has been produced. Of course there is plenty of authority that the beginning of a suit is the filing of the declaration, and that amendments properly made relate back thereto, but this is applicable to the defendants sued, and not to new parties made under circumstances like these. See Code, §3333; 22 Ga., 359; 37 Id., 32; 47 Id., 540; 50 Id., 53; 54 Id., 59, cited by plaintiff in error; These cases are unlike this, and no principle ruled in them applies so as to cover this.

3. The cross-bill of exceptions rests on the’ground that a new party was made and that it is illegal, but the trouble is that objection thereto was not taken in time. Two terms were allowed to elapse before the objection was taken by making the motion to vacate the order making the administrator a party. It was too late when made, (51 Ga., 203); but considering it legal it presents a case, we think, where the bar of the statute attached, as it ran up to the time he was made a party by service, it being his first notice of suit.

4. There was no error in permitting the heir to testify, though the other party was dead. He was no party to the suit or cause of action. He would have been a good witness before the act allowing parties to swear, for he had assigned all his interest.

The result is that the judgment must be affirmed in both cases; in the main bill of exceptions because the suit is barred by the statute of limitations, as charged in effect by the court, and in the cross-bill because the plaintiff in error there was too late in 'moving to vacate the judgment which made the administrator a party, and in raising the other objections to the regularity of the proceedings which brought them into court.

Judgment affirmed.