Weddington v. Huey , 80 Ga. 651 ( 1888 )

Blandford, Justice.

1. Under the facts of this case, we know of no law that authorized the court to make Weddington, Jr., a party thereto. The statute points out the way in which an administrator de lonis non may be made a party to a pending cause, upon the death or discharge of his predecessor, to-wit, by scire facias. We think the action of the court in making Weddington, Jr.,- as administrator, a party, in the way in which it was done in this case, was erroneous.

2. We are also of the opinion that the verdict against Weddington, Sr., as executor, was good, and that a judgment could have been entered up against him upon that verdict and would bind him, notwithstanding he was discharged as such executor prior to the verdict, there having been no suggestion or plea made by him to that effect. It seems that his counsel sat by and failed to disclose the fact of his discharge.

3. It may be that upon a subsequent suit brought against Weddington, Jr., as administrator, for an account and settlement of the matters of the estate in his hands, he would be bound by the verdict in the present case, and be es-topped from denying that the estate is indebted'to Huey the amount found by this verdict, he having been present in court assisting in the defence.

4. It appears to us that this was a case that suggested somewhat the exercise of the punitive power of the court below. Counsel ought not to have dealt with the court as they did in this case. And while it was within the discretion of the court to exercise this power, or not, as it saw proper, it seems to us that some application of that power would have a tendency to correct such abuses as appear in this case.

Judgment reversed.