McMillan v. Toombs

74 Ga. 535, 1885 Ga. LEXIS 353

• Court: Supreme Court of Georgia
• Decided: February 24, 1885
• Status: Published

Opinion

Blandlord, Justice.

Robert McMillan died leaving a will, and appointed as his executors his two sons, R. E. McMillan and Garnett McMillan, who married and difed, leaving several children and a widow, who intermarried with one Wilson. Mrs. Wilson, as guardian for her children by Garnett McMillan, deceased, filed her bill against R. E. McMillan, the surviving executor, to recover their interest as the children of Gar-nett McMillan, deceased, in the estate of Robert McMillan, their grandfather, deceased. This bill was filed at the October term, 1878, of Habersham.-superior court. R. E. McMillan, the executor, filed his answer and cross-bill to this bill, on the 20th of October, 1879, in which, among others, he alleged that General Toombs held a claim by account against the estate upon which there was due eleven hundred and fifty dollars. He prayed that Toombs be made a party. On the 29th of April, 1880; Toombs acknowledged service on this cross-bill. At the August term, 1880, of said court, by consent of the executor, R. E. McMillan, and Mrs. Wilson, the guardian of her children, a decree was taken, by which certain lands belonging to the estate of Robert McMillan were ves,ted in her children. On the 24th of November, 1881, General Toombs^ answered the cross-bill filed by the executor, in which he admitted the indebtedness of the estate of Robert McMillan to him, as alleged in the cross-bill of the executor. At the February term, 18S2, General Toombs came into court and asked for a trial of the case made by himself. This was at first refused, but afterwards allowed, and the executor excepted. At the September term, 1884, the case was tried and resulted in a verdict for the executor. Toombs moved for a new trial, which the court granted, and this is likewise excepted to, and errors are assigned on these exceptions.

1. The first point made by plaintiff in error is that, when General Toombs came into court, there was no case in court; that the same had been finally disposed of at the August term, 1880, when the consent decree was taken on the bill filed by Mrs. Wilson against the executor. There was no decree taken at that time dismissing the bill, and as between the executor and General Toombs, the matters remained in statu quo. The cross-bill was still pending, and was not affected by the decree rendered by consent in favor of Mrs. Wilson’s children and the executor. Toombs was no party to this decree, and no matter between himself and the executor was adjudicated thereby. So we think the court did right to allow a hearing of the case between the executor and General Toombs.

2. The next assignment of error is that the court erred in granting the new trial. In this we think the court did right; to have refused the new trial would have been manifest error.

3. The cross-bill of the executor alleged that Robert Toombs “ had an account against the estate upon which there was a balance due of eleven hundred and fifty dollars.” This was an acknowledgment of the debt sufficient to take it out of the statute of limitations, under section 2935 of the Code. The court could have decreed for Toombs, without the intervention of a jury, as there was no issue of fact between him and the executor to be tried by a jury. The court erred in not construing the cross-bill of the plaintiff in error and stating the legal effect of the same to the jury. So we sustain the cross-bill of exceptions filed by the defendant in error, and upon the whole, affirm the judgment of the court below.

Judgment affirmed.