Mansfield v. Turfin & Clements

32 Ga. 260

Opinion

By the Court.

Jenkins, J.,

delivering the opinion.

We hold that the judgment of the Court below, awarding a non-suit in this case, was correct.

Anterior to the Act of the 23d July, 1850, foreign executors and administrators had no status in the Courts of Georgia—could not institute suits to recover choses in action, or to enforce any right of their testators or intestates. That act removed the disability—conferred the- right. But the Legislature, (as they had a perfect right to do,) imposed a condition on the privilege in the form of a proviso to the act, in these words: “ Provided, said legal representatives shall, on or before the judgment term of the Court to which such suit or suits are brought, file in said Court a legally authenticated exemplification of his, her, or their letters of administration, to be used on the trial.”

This is not required to be done at the filing of the declaration, nor at the appearance term. The defendant is required to plead, or answer, at the appearance term, and therefore is not required to plead the plaintiff’s failure to comply with the proviso of the act.

If the plaintiff go to trial, at the judgment term, and close his' case without showing that he has complied with the proviso, he does not bring himself within the operation of the act,—does not show that he is entitled to a judgment of the Court, and is therefore subject to a non-suit.

Judgment affirmed.