Fuller v. Booth

Whitman, Judge.

A deceased person cannot be a party to a legal proceeding. But the only effect of death is to suspend the action as to the decedent until his legal representative is substituted as a party, assuming of course a pending action where the cause of action survives. Code § 3-501.

While an application for substitution of the legal representative, under the procedure available (Code §§ 3-402, 3-404) when the defendant in the present case died (June, 1962), was not required to be made immediately after the expiration of 12 months from the probate of the will or granting of letters of administration (representative receives 12 months immunity from suit by Code § 113-1526), but could be made within a reasonable time after such expiration (Woods v. Howell, 17 Ga. 495), this court is of the view that such an application which shows on its face that it is made more than four years after expiration of the immunity period is not an application within a reasonable time. Cf. Johnson v. Sears, 199 Ga. 432, 435 (34 SE2d 541); Smart v. Wilson, 117 Ga. App. 572 (161 SE2d 409).

Submitted May 6, 1968 Decided November 20, 1968. Gilbert & Carter, Fred A. Gilbert, for appellant. William T. Brooks, Charles B. Webb, for appellee.

Accordingly, it was error, after such an expiration of time, to grant a motion to substitute the administrator for the decedent and name him a defendant in the action.

If under Hill v. Willis, 224 Ga. 263, 264 (1) (161 SE2d 281), we are bound to apply the Civil Practice Act, then we reach the same result under Code Ann. § 81A-125 (Ga. L. 1966, pp. 609, 634).

Judgment reversed.

Felton, C. J., and Eberhardt, J., concur.