Opinion
35341.
DECIDED JANUARY 25, 1955.
Bond forfeiture. Before Judge Rees. Macon Superior Court. April 29, 1954.
A. C. Felton, III, for plaintiff in error.
Charles Burgamy, Solicitor-General, contra.
In the present case the administrator objected to the proceeding after being made a party to the suit but before a final judgment was entered, and the case is therefore distinguishable from Leath v. Hardman, 43 Ga. App. 270 ( 158 S.E. 453), where no objection was raised until after the final judgment was entered. Accordingly, the trial court, in the present proceedings to enforce a criminal bond, erred in overruling the administrator's plea that the action should abate until the expiration of twelve months from the date of his qualification as administrator.
Judgment reversed. Felton, C. J., and Quillian, J., concur.
DECIDED JANUARY 25, 1955.
This case arose by virtue of a bond-forfeiture proceeding instituted by Charles Burgamy, as solicitor-general, on behalf of Herman Talmadge, Governor. On May 9, 1950, B. J. Ashmon was found guilty in Macon Superior Court of manufacturing liquor, and was sentenced to serve not less than one year and not more than two years in the penitentiary. Ashmon filed a motion for new trial, in connection with which he signed a supersedeas bond as principal and Robert Johnson signed as surety. At the May, 1953, term the motion for new trial was dismissed for want of prosecution, and the bond was forfeited by the trial court. After the signing of the bond, Robert Johnson died and Walter Johnson was appointed and qualified as administrator of his estate with the will annexed. However, it does not appear from the record whether his death and the appointment of his administrator occurred before or after the bond was forfeited. On August 7, 1953, Walter Johnson, as administrator, was made a party to the proceeding, and on the same day a scire facias issued and was served upon him. On November 18, 1953, Walter Johnson, as administrator, filed a plea in abatement on the ground that the proceeding against him as administrator was commenced before the expiration of twelve months from the date of his qualification as such administrator. The case as thus made was submitted to the trial court by agreement of counsel, and on April 29, 1954, the court in separate orders overruled the plea in abatement and made the rule absolute.
Walter Johnson, as administrator, excepted to the orders overruling his plea in abatement, and making the rule absolute, as being contrary to law.