Opinion
16955.
FEBRUARY 15, 1950.
Cancellation, etc. Before Judge Pratt. Banks Superior Court. November 3, 1949.
Kimzey Kimzey, for plaintiff in error.
J. B. G. Logan, contra.
A temporary administrator has no right or authority to maintain an action for the recovery of land held adversely to the estate of his decedent; and where, as here, such a representative is made a party plaintiff in the place of the deceased original plaintiff, all proceedings thereafter taken in the case are nugatory; and in these circumstances it becomes unnecessary to pass on other questions made by the writ of error.
No. 16955. FEBRUARY 15, 1950.
On October 2, 1938, Mrs. Nancy J. Peyton brought a suit in the Superior Court of Banks County against W. Randilus Peyton, and, upon the ground of fraud, prayed for the cancellation of a deed which she had made to him in 1935, and for the recovery of the land described therein. The defendant filed an answer and, except as to his residence in Banks County, denied all of the material allegations of the petition. A jury found for the plaintiff, and upon that verdict a decree was entered granting all of the relief prayed. A motion for new trial was made, which, after being amended, was heard on July 23, 1940, and overruled upon condition that the plaintiff, within twenty days therefrom, pay into the court for the benefit of the defendant $10 with interest thereon at 7% per annum from the date of the verdict, the order reciting that the evidence showed without any dispute that the plaintiff had received that amount from the defendant as consideration for the deed involved; and it was further ordered that, if the plaintiff failed to comply with the terms of the order, a new trial was thereby granted. Two days later, the defendant sued out a writ of error and brought his case to this court for review. Mrs. Peyton died on July 27, 1940, and G. H. Rylee, as temporary administrator of her estate, was afterwards made a party to the writ of error in her place. We afterwards dismissed the writ of error on the ground that it had been prematurely brought to this court. Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195). On May 2, 1944, in Peyton v. Rylee, 197 Ga. 545 ( 30 S.E.2d 94), and for reasons stated in the opinion, we reversed the judgment then complained of, and held that the court erred in refusing to grant the defendant a new trial. The record shows that counsel for the parties filed a stipulation on January 8, 1944, that G. H. Rylee was on September 3, 1940, appointed temporary administrator of the estate of Mrs. Nancy J. Peyton, and that he qualified as such representative on the day of his appointment. By order of the judge, the stipulation was filed as a part of the record. An amendment captioned "G. H. Rylee, administrator Mrs. Nancy J. Peyton, deceased, v. W. Randilus Peyton," was offered by G. H. Rylee, "in his representative capacity," to the plaintiff's original petition on March 19, 1945, which contained a prayer for the recovery of rents that the defendant allegedly had received from the premises sued for. The defendant demurred to the amendment and objected to its allowance upon the ground among others, that G. H. Rylee, as temporary administrator of the estate of Mrs. Nancy J. Peyton, deceased, had no right or authority to proceed with or maintain an action for land filed by his decedent during her lifetime. Respecting the amendment and the demurrers interposed thereto, the court passed the following order: "The amendment offered by the plaintiff in the above-named and stated case having been allowed subject to objections and demurrer, and defendant having filed demurrers to the petition as amended, raising the question of the temporary administrator of the above-named party having the right to be a party plaintiff to this character of case, and it appearing that the temporary administrator has not by formal order been made a party plaintiff in this case, and the defendant's counsel having argued the demurrers in the opening, the court then taking a recess for dinner, and upon reconvening plaintiff's counsel voluntarily asked to be permitted to withdraw the amendment, but defendant's counsel objecting to this until the demurrers to the petition as amended are passed on, the court being of the opinion that the amendment in the name of the temporary administrator is a nullity and of no legal effect and also the plaintiff's counsel may withdraw and dismiss the same, it is therefore ordered and adjudged that the amendment to the plaintiff's petition, this day allowed subject to objections and demurrers, is withdrawn and dismissed by plaintiff's counsel. Further ordered that said case is taken from the trial calendar for this term of court for the lack of a party plaintiff for it to proceed, the original plaintiff having departed this life since the filing of said suit. In open court, this 19th day of March, 1945." On the same day the court also entered the following order on the back of the defendant's demurrers: "The within demurrer coming on regularly for hearing, and after hearing counsel for demurrant-defendant, plaintiff's counsel was allowed to voluntarily withdraw and dismiss the amendment, which was this day allowed subject to objections and demurrers, the pleadings to which the within demurrer is addressed being so withdrawn, the within demurrer is functus officio and is not required to be passed on, and it is so ordered and adjudged." To those orders and ruling, the defendant excepted pendente lite. On March 19, 1946, G. H. Rylee, "as the administrator of Mrs. Nancy J. Peyton, deceased," was made a party in the place of the deceased Mrs. Peyton. The record, however, does not show that G. H. Rylee was ever appointed permanent administrator of the estate of Mrs. Peyton, and the order making him a party does not show affirmatively that he was made a party plaintiff in that capacity. In fact, the record does not disclose any change in his status as temporary administrator of the estate of Mrs. Peyton, and the defendant contends that there was none. There was no substantial change in the caption of the subsequent proceedings in the case. The case then proceeded to trial and resulted in a verdict for the plaintiff, and the defendant excepted to a judgment refusing a new trial. Error is also assigned on the exceptions pendente lite and the judgments therein complained of.
1. Unquestionably, under the law of this State, a temporary administrator has no right or authority to maintain an action for the recovery of land held adversely to the estate of his decedent. Banks v. Walker, 112 Ga. 542 ( 37 S.E. 866); Doris v. Story, 122 Ga. 611 ( 50 S.E. 348); Ward v. McDonald, 135 Ga. 515 ( 69 S.E. 817). In the present case, the plaintiff in error contends that the plaintiff Rylee represented the estate of the deceased, Mrs. Peyton, only in the capacity of a temporary administrator; and, if that be true, a ruling by us that the judgment complained of is in law a nullity is inescapable. Respecting this question, the record affirmatively shows that Rylee was appointed temporary administrator of the estate of Mrs. Peyton on September 3, 1940; that his status was such on March 19, 1945, when he voluntarily withdrew and dismissed an amendment which he had filed in the instant case; and that nothing is contained in the record which shows any change in his representative capacity on March 19, 1946, when he was made a party plaintiff. Our rules of procedure and practice require a pleader to "plainly, fully, and distinctly" state his cause of action and his demand for relief. Code, § 81-101. And, in order to comply with the rule of good pleading, Rylee was required in the instant case to show affirmatively that he represented the estate of Mrs. Peyton in a capacity which would authorize him to maintain the suit which she had previously filed, and it is sufficient to say that he has failed to do so; and this is true for the reason that he is shown by the record to be only a temporary administrator of Mrs. Peyton's estate. Therefore it follows that all proceedings taken in the original plaintiff's suit in the court below under the name of the alleged personal representative were, for want of a proper party, necessarily nugatory.
2. In view of the ruling made in the preceding division, it is unnecessary to consider or pass upon any of the other assignments of error.
Judgment reversed. All of the Justices concur.