Opinion
27499.
ARGUED OCTOBER 10, 1972.
DECIDED NOVEMBER 9, 1972. REHEARING DENIED NOVEMBER 30, 1972.
Equitable petition. Polk Superior Court. Before Judge Winn.
Marson G. Dunaway, Jr., for appellants.
Henry A. Stewart, Parker O'Callaghan, James I. Parker, Ed Henning, E. L. Gammage, Jr., W. W. Mundy, for appellees.
The trial court did not err in refusing to grant the appellants' motion for summary judgment and in thereafter granting the motion directing the distribution of the proceeds of a liability insurance policy pro rata toward the extinguishment of judgments obtained against the insured's estate.
ARGUED OCTOBER 10, 1972 — DECIDED NOVEMBER 9, 1972 — REHEARING DENIED NOVEMBER 30, 1972.
This is an equitable complaint wherein the plaintiffs sought to enjoin the payment of any funds from a liability insurance policy until all claimants to such funds had an opportunity to liquidate their claims. The record discloses that Charles Reeves was the driver of an automobile which was involved in a collision on April 25, 1970, and that he died as a result of such collision. His estate is insolvent and the only assets from which all claims arising from such collision can be paid is the liability insurance policy.
An administrator was appointed and suits filed on behalf of three claimants (hereinafter referred to as the Cannons). The 12-month exemption from suit provided by Code § 113-1526 was waived and such actions proceeded to trial and verdicts for the Cannons. Prior to the running of the 12-month exemption the claimant, Mrs. Charlotte Tant, filed an action against Reeves' administrator. The exemption was not expressly waived, but nevertheless such action proceeded to judgment. Actions on behalf of another group of claimants (hereinafter referred to as the Garretts) were filed, but when the exemption was expressly raised as a defense, the actions were withdrawn and refiled after the year's exemption had expired.
After the present action was filed, the insurer entered into a proposed negotiated settlement with those claimants who had not reduced their claims to judgments and such proposed settlement was submitted to the court in this case for approval. The trial court approved such negotiated settlement and authorized the direction of verdicts for such amounts.
Thereafter, a motion for summary judgment for the Cannons was overruled; a judgment was entered distributing the proceeds of the insurance policy between all the claimants based upon the judgments which included those for the Cannons, Mrs. Charlotte Tant and those based upon the approved settlement agreement. The present appeal is filed by the claimants referred to as the Cannons.
1. The first question for decision is whether the trial court erred in denying the Cannons' motion for summary judgment. This motion was based upon the fact they hold the only lawful judgments and are the only claimants entitled to proceed against the insurer under the terms of the policy of liability insurance.
A consideration of the following statutory and case law is necessary for a determination of the merits of this contention.
"Liens of all judgments obtained in actions for damages growing out of a common disaster or occurrence shall be equal in rank or priority, regardless of the date of the rendition of the verdict or the entering up of the judgment: Provided, however, that this section shall apply only to judgments obtained upon suits that are filed within 12 months from the date of the happening of the disaster or occurrence giving rise to the cause of action. The provisions of this section being remedial in nature and character, shall apply to all actions now pending in the courts of this State and to all those which may be hereafter filed wherein damages are sought to be recovered on account of injuries sustained in, or death resulting from, a common disaster or occurrence." Ga. L. 1947, p. 1138 ( Code Ann. § 110-507.1).
"No suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of 12 months from his qualification. This exemption shall not apply to an administrator de bonis non, unless appointed within the year allowed to his predecessor. In all cases the administrator de bonis non shall be made a party to suits pending against the administrator, upon scire facias returnable to the first term." Code § 113-1526.
"Judgments obtained against an administrator or executor after the death of the intestate or testator, rank no higher than the demands on which they are founded." Carter v. Penn, 79 Ga. 747 (4) ( 4 S.E. 896). "In the lifetime of the decedent, judgments ranked according to seniority. But after his death the rendition of a judgment against his administrator would not confer any priority on the claim which formed its basis, or changed its rank." Herrington v. Tolbert, 110 Ga. 528, 530 ( 35 S.E. 687).
The priority of debts against an estate is controlled by Code § 113-1508 and no preference among those within a designated priority may be given by an administrator or executor. See Bomgaux v. Beven, Dud. 110, decided by the Chatham Superior Court, July 1831.
"The administrator shall be allowed 12 months from the date of his qualification, to ascertain the condition of the estate." Code Ann. § 113-1505.
The statute of limitation does not run during the 12 month period referred to in Code §§ 113-1505 and 113-1526. See Coney v. Horne, 93 Ga. 723 ( 20 S.E. 213).
"The statutory provision that no suit to recover a debt due by a decedent shall be commenced against his legal representative until the expiration of twelve months from his qualification is for the security of such representative, to protect him from suit until he can ascertain the condition of the estate; and if he suffers a judgment to be rendered against him during that period, a claimant of property against which such judgment is sought to be enforced can not bring into question the validity thereof, since its rendition within that period can in no way have operated to his prejudice. Baker v. Shephard, 30 Ga. 706." Hill v. Julian, 119 Ga. 607 (1) ( 46 S.E. 834).
With the above well settled law in mind, were the appellants entitled to summary judgment?
Their judgments were obtained after death of the intestate as were the other judgments and were not elevated to a higher priority as a result of their diligence. The judgment of Mrs. Charlotte Tant (obtained in an action filed within one year of the death of the intestate) cannot be attacked by the appellants, and while the liability of the insurer is based upon a contract which provides for no liability until "finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company," yet when the claimants and the insurance company enter into an agreement and the administrator of the insured's estate expressly waives any objection thereto and such agreement is approved, after hearing, by the superior court, it cannot be said that the judgments entered therein and in compliance therewith are not within the terms of the policy. Accordingly, the judgment denying the appellants' motion for summary judgment was not error.
2. The authorities quoted above show without dispute that the claims of all the claimants arising out of the collision stood upon an equal footing, that no attempt by the administrator to favor one claimant over the others would be valid, and that each is entitled to a pro rata part of the proceeds of the policy to satisfy his claim. In addition to the claims of the appellants, the claim of Mrs. Charlotte Tant was established by a jury. The claims of the remaining claimants were established by the agreement approved by the superior court, after hearing, where any contention that such claims were exorbitant could have been raised by the appellants. Thus, unless there was some antecedent error, the final judgment directing the payment of the proceeds of the policy pro rata shows no reversible error.
3. The original action sought to enjoin the insurer and the administrator from paying out the proceeds of the policy alleging that the estate was insolvent and that the claims occurring out of the common disaster were in excess of the policy limits. The appellants were made party defendants at the request of the insurer to bring all parties before the court so that distribution could be made to all claimants from the funds. It was alleged, and not disputed (all pleadings being verified and no other evidence being shown), that the appellants were seeking in another court to collect the entire fund from the insurer. Accordingly, the judgment of the trial court making the appellants parties was not error. As to effect of sworn pleading in an equity case, see Salter v. Ashburn, 218 Ga. 62 (2) ( 126 S.E.2d 404).
4. The remaining enumerations of error are controlled adversely to the appellants by the above rulings, and the judgment of the trial court ordering distribution of the fund pro rata between all claimants was not error for any reason assigned.
Judgment affirmed. All the Justices concur.