Ahlgren v. Walton

128 S.E. 585, 34 Ga. App. 42, 1925 Ga. App. LEXIS 24

Opinion

Broyles, C. J.

1. Where a suit is brought against the administrator of the estate of a decedent to recover a certain sum of money “out of the identical money” collected by the administrator in a certain transaction, and where the action is commenced within twelve months of the qualification of the administrator, the suit can not be maintained, unless it be shown that this money collected by the administrator has not become intermingled with other funds of the estate. See, in this connection Tiedman v. Imperial Fertilizer Co., 109 Ga. 661 (34 S. E. 999) ; Ober & Sons Co. v. Cochran, 118 Ga. 396 (45 S. E. 382, 98 Am. St. R. 118).

(a) The plaintiff can not, in the municipal court of Atlanta, trace and claim the specific funds which he alleged the administrator had collected. To do this, he would have to apply to a court of equity, and in this State equity jurisdiction is vested solely in the superior courts. Civil Code (1910), § 4518.

2. Under the above-stated rulings, the judge of the municipal court of Atlanta properly sustained the defendant’s plea in abatement and dismissed the suit, and the judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

Lulce and Blood/worth, JJ., concur.