91 S.E.2d 789

CONKLE, Administrator, v. BABB et al.

36007.Court of Appeals of Georgia.


1. The plaintiff in error contends that the cause for removal for failure to make annual returns arose when he failed to make his first return which was over 24 years ago and that the action is barred by the statute of limitations and by laches. This contention is without merit. An administrator is required to make a return on or before the regular term of court in January in each year. Code § 113-1409. The failure to make such returns is ground for removal. Code § 113-1229. The law contemplates that each failure to so make a return is an independent and separate cause for removal. Assuming but not deciding that the earlier failures to make the returns are barred as being cause for removal, at least the most recent failure to do so is not barred. Since the petition alleged at least one good ground for removal, the court did not err in overruling the general demurrers. Port Wentworth Terminal Corp. v. Leavitt, 24 Ga. App. 650 (1) (101 S.E. 766).

2. The plaintiff in error had the alternative of excepting directly to the judgment directing a verdict or of complaining thereof in a motion for new trial. He moved for a new trial on the general grounds only. In his bill of exceptions he seeks to assign error on the direction of the verdict. This he cannot do. Having moved for a new trial, he should have complained of the direction of the verdict in the motion, and having failed to do so, he cannot assign error thereon in his bill of exceptions. Guarantee Trust Life Ins. Co. v. Hill, 90 Ga. App. 287 (2) (82 S.E.2d 885) and cases cited.

3. Therefore, we consider only whether the evidence authorized the verdict. Since the evidence showed that the administrator had not filed any annual returns as required by law, and at least the latest failure is a ground for removal, the evidence authorized the verdict. Whether the verdict was authorized for other reasons is not necessary to decide.

Judgments affirmed. Quillian and Nichols, JJ., concur.

Petition for removal of administrator. Before Judge Brown. Henry Superior Court. October 6, 1955.

Lester Dickson, S. T. Ellis, for plaintiff in error.

Ernest M. Smith, Christopher, Futral, Owen Bolton, contra.

Marion L. Babb and others, as heirs at law of A. Conkel, petitioned the Court of Ordinary of Henry County to remove E. E. Conkle as administrator of the estate of A. Conkle. The pertinent allegations of the amended petition are: that on January 6, 1919, E. Conkle was appointed administrator of the estate of

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A. Conkle; that since his appointment as administrator E. E. Conkle has failed and refused to file an annual accounting with the court of his actings and doings and of his receipts and disbursements as administrator; that the administrator has collected the rents and profits from the property since 1919 and has not accounted to the heirs at law for any part of said rents and profits; that the administrator has for more than twelve months since his qualification failed to make settlement with the heirs and distributes of the estate; that the administrator has failed and refused to make and file an inventory and appraisal of the assets of the estate as required by statute; that J. C. Gibbs signed the bond of E. E. Conkle as surety in order for Conkle to qualify as administrator for said estate and petitioners are informed and believe that said Gibbs died ten or fifteen years ago, and the administrator fails and refuses to execute and file a new bond as required by statute; that the administrator is likely to become insolvent.

The defendant generally demurred to the petition as amended and also demurred generally setting up the statute of limitations, The court of ordinary sustained the general demurrers and dismissed the action. On appeal to the superior court, the court overruled the demurrers, and at the close of the case directed a verdict for the petitioners. The administrator moved for a new trial on the general grounds only. The court denied the motion for new trial, and the administrator excepts, assigning error on the overruling of the general demurrers, on the direction of the verdict, and on the denial of the motion for new trial.