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Hamer vs. Sears et al.

road, near Griffin; and he never at any time had notice of the suit or the service until long after Sears obtained judgment. Complainant had a good defence to the note, which he would have made had he had notice, such defence arising out of the facts already stated. The judgment was obtained by fraud in that, at the time of the institution of the suit and of the service, Sears knew that complainant was away from home, and designedly brought his suit at the time he did in order to take advantage of this fact. The judgment was rendered on July 4, 1887, which was a legal holiday, and therefore is void. That was a day when one would not expect to have judgment taken against him or on which he would be called on to make defence to a suit. Execution has been issued on the judgment, and has been levied on complainant's property. He prays injunction, etc.

Sears answered the bill, denying every material allegation therein or suggestion of fraud on his part. The sheriff answered that the defendants resided with their families within from one to three miles of Columbus, the county site; and that when he went to serve the copy declaration, etc., they were both absent from home, and so he made the service as stated in the bill.

The chancellor refused the injunction, and the complainant excepted.

Thomas & McLESTER, for plaintiff.

B. A. THORNTON, by C. J. THORNTON, for defendant.


1. This is an exception to the refusal of the court to grant an injunction. We have carefully considered the bill filed by the plaintiff in error against the defendants in error, and fail to see any equity therein.

V 81-19

Crabtree, ordinary, for use, vs. Graham et al.

2. The main ground of equity relied on is, that the judgment was rendered on the 4th of July, and it was contended that the 4th of July was dies non juridicus, and that therefore the judgment was void. We have a different opinion. There is no statute of this State that inhibits the courts from sitting on the 4th of July, if it fall not on Sunday, or which prevents the court from rendering judgment on that day. It is true that the 4th of July is a holiday by our code, and for some purposes certain things cannot be done,—such as the noting and protesting of notes and commercial paper; and these things are specially mentioned in the statute (code, $2783); but nowhere are the courts prohibited from meeting and transacting business on that day.

The judgment of the court refusing the injunction is affirmed.

CRABTREE, ordinary, for use, vs. Graham et al.

1. When a court of competent jurisdiction has determined that a

claim against an estate is barred, and such judgment has not been reversed or set aside, the administrator cannot do anything thereafter which will revive such claim as a debt against the estate, or render his sureties liable because of his failure to pay the debt. If he do acknowledge such claims and pay them, he and his sureties are nevertheless liable to the proper distributees for the money of

the estate so applied. 2. Claims which the administrator held in his hands, as attorney at

law, at the time he took out letters, which have never been paid, and as to which there is no liability on him to pay, the creditors to whom such claims belonged being barred by the statute of limitations of any right against him either as attorney or administrator, are not such claims as he or his sureties are entitled to credit for in a suit upon his bond by the ordinary for the use of the distributees of the estate.

May 11, 1888.

Administrators. Statute of limitations. Before Judge Fain. Dade superior court.

Dade superior court. March term, 1887.

Crabtree, ordinary, for use, vs. Graham et al.

Reported in the decision.

W. U. & J. P. JACoway and R. J. McCamy, for plaintift:

E. D. GRAHAM, McCUTCHEN & SHUMATE, DABNEY & Fouché and LUMPKIN & BROCK, for defendants.


It appears from the record in this case that, in 1866, Graham was appointed administrator of Derryberry. At the time of his appointment as administrator, he had in his hands as an attorney at law, for collection, divers claims against Derryberry. At the time the present action was brought, none of these claims had been paid, and all of them were barred by the statute of limitations. In Derryberry’s lifetime, judgment had been obtained against him upon certain claims by Allison, Anderson & Co. After his death an attempt was made to revive this judgment by scire facias ; which proceeding was dismissed, upon the ground that affidavit of the payment of taxes was not filed by the plaintiff; and the case having been brought to this court, the decision of the court below was affirmed. Scire facias was again sued out, and a demurrer thereto was again sustained, upon the ground that the debt due upon the judgment was barred by the statute of limitations. A motion was made to set aside this judgment dismissing the scire facias, but no action was ever taken thereon. A motion having been made to make Graham a party, as administrator of Derryberry, Graham came in and voluntarily consented to be made a party to the judgment. This judgment and the claims in Graham's hands against Derryberry above referred to would, if paid, have consumed all the money in his hands as administrator. As already stated, they were

Crabtree, ordinary, for use, vs. Graham et al.

not paid at the time the present action was brought. This action was brought against Graham and his sureties by the ordinary, for the use of the heirs at law of Derryberry, alleging a devastavit on the part of Graham in not paying over to them their distributive part of the estate. The case was submitted to the court without the intervention of a jury; and the court decided in favor of the defendants. The plaintiff thereupon excepted, and brought the case to this court for review.

In the case of Bennett, ordinary, for use, vs. Graham, administrator, et al., 71 Ga. 211, this court held that the judgment in favor of Allison, Anderson & Co. against Graham, as administrator, bound him absolutely, but was not conclusive against his sureties ; that his having been made a party to that judgment did not bind them, but bound him only; that the claim of Allison, Anderson & Co. was not a subsisting debt against the estate, and Graham was not required to pay it, the judgment of the court declaring the same barred by the statute of limitations not having been reversed or set aside; and hence the sureties, being bound only for the faithful discharge of his duties as administrator according to law, were not liable for the non-payment of this debt by the administrator, thus declared barred by the court.

1. It is insisted here that Graham, being liable as administrator, may retain out of the money in his hands as administrator sufficient to pay this claim. We do not think so. It is not a debt against the estate. A court of competent jurisdiction so determined, and determined it at the instance of the administrator himself; and Graham has no power to revive, by any act of his, that judgment as a debt against the estate. An administrator may revive a debt against his intestate which becomes barred after the death of the latter, and his ac

Jones et al, vs. Johnson, Kimball & Company.

tion in regard thereto is binding upon the heirs and the sureties upon his bond as administrator.

. But when a court has determined that a claim is barred, and the holding of the court has not been reversed or set aside, the administrator cannot thereafter do anything which will revive such claim as a debt against the estate, or render his sureties liable because of his failure to pay the debt. The judgment of Allison, Anderson & Co. is out of the way, so far as this estate is concerned.

2. The claims which Graham had in his hands as an attorney at law, at the time he took out letters of administration, have never been paid, and there is no liability upon him to pay any of them; these creditors are barred of any right against him as an attorney at law or as administrator of this estate. Therefore the assets in Graham's hands as administrator, which would have gone to pay these debts if they had been good debts, ought now to be in his hands to be accounted for and paid over to the heirs at law; and for that purpose the sureties on his bond are bound. They are bound for his faithful administration of the estate; and are therefore bound to see that he pays over to the heirs at law the money in his hands, as administrator, not required to pay the debts of the estate. We think Graham is liable to the usees of the plaintiff in this case, the heirs of Derryberry, for the money in his hands at the commencement of this suit belonging to the estate; and that the court below erred in the judgment rendered in this case. The judgment is reversed and a new trial ordered.


1. Where an action of ejectment is brought in the “John Doe" form,

a demise may be introduced, by amendment, at any time; and

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