Hausauer v. Order of Railway Conductors Home Ass'n

168 S.E. 24, 176 Ga. 369, 1933 Ga. LEXIS 76

• Court: Supreme Court of Georgia
• Decided: February 16, 1933
• Docket: No. 8837
• Status: Published

Opinion

Atkinson, J.

1. As a general rule, where there is no legal representative of an estate a suit can not be maintained directly at the instance of the sole heir at law, to recover from a third person personal property left by the deceased. Murphy v. Pound, 12 Ga. 278; Morgan v. Woods, 69 Ga. 599; Smith v. Smith, 141 Ga. 629 (7) (81 S. E. 895) ; Brown v. Mutual Life Insurance Co., 146 Ga. 123-4 (90 S. E. 856); Battey v. Meyerhardt, 157 Ga. 800 (122 S. E. 195).

(а) Special circumstances, such as collusion by an administrator with the other party, which might make an exceptional case, were not here involved.

(б) The judge did not err in sustaining the ground of demurrer raising the question as to the right of the plaintiff to maintain the action, and in dismissing the suit.

No. 8837. February 16, 1933.

2. Any discretion of tlie court in granting time to enable tlie plaintiff to set up a will and have the executor made a party suing for the use of tlie plaintiff should have been invoked before judgment in the trial court. There was no error in refusing, on motion, to open the judgment for the purposes just stated, especially as it was not made until after the court had adjourned for the term.

Judgment affirmed.

All the Justices concur. Cobb & Bright, for plaintiff. Hitch, Denmark & Lovett and R. B. Moms, for defendant.