GA Code § 9-2-27 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 2 - Actions Generally|Article 2 - Parties|§ 9-2-27. Action Against Representative of Joint Obligor

 Where any person is in possession, in his own right or in any other capacity, of any note, bill, bond, or other obligation in writing, signed by two or more persons, and one or more of the persons whose names are so signed dies before the payment of the money or the compliance with the conditions of such bond or obligation in writing, the person holding the bill, bond, note, or other obligation in writing shall not be compelled to bring an action against the survivors alone, but may at his discretion bring an action against (1) the survivor or survivors, (2) the representative or representatives of the deceased person or persons, or (3) the survivor or survivors and the representative or representatives of the deceased person or persons in the same action. However, nothing contained in this Code section shall authorize the bringing of an action against the representative of any estate until six months after the probate of the will or the granting of letters of administration on the estate or estates. This Code section shall be so construed as to embrace debts against copartners as well as debts against joint or joint and several contractors.   (Laws 1818, Cobb's 1851 Digest, p. 483; Ga. L. 1858, p. 86, § 1; Code 1863, §§ 3261, 3262; Code 1868, §§ 3272, 3273; Code 1873, §§ 3348, 3349; Code 1882, §§ 3348, 3349; Civil Code 1895, §§ 5014, 5015; Civil Code 1910, §§ 5596, 5597; Code 1933, § 3-305; Ga. L. 1981; p. 852, § 1; Ga. L. 1982, p. 3, § 9.)   Editor's notes.   - Ga. L. 1981, p. 852, § 1, amended this Code section so as to reduce the period of exemption from suit for representatives of joint obligors from 12 months to 6 months and to conform this Code section to Code Section 53-7-102, which was similarly amended by Ga. L. 1971, p. 433, § 2. Section 2 of this Act stated that the Act was not to be construed to imply that the 1971 Act that amended Code Section 53-7-102 did not impliedly repeal this Code section to the extent of any conflict.   Law reviews.   - For survey article citing development in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, "Partner v. Partner: Actions at Law for Wrongdoing in a Partnership," see 9 Ga. St. U.L. Rev. 905 (1993).   JUDICIAL DECISIONS    This section is applicable to partnership debts. Rodgers v. Rushin, 30 Ga. 934 (1860); Garrard v. Dawson, 49 Ga. 434 (1873); Lively v. Ward & McCullough, 23 Ga. App. 805, 99 S.E. 632 (1919).    This section applies to action on sheriff's bond. Morrison v. Slaton, 148 Ga. 294, 96 S.E. 422 (1918); Cone v. American Sur. Co., 29 Ga. App. 676, 116 S.E. 648 (1923).    This section applies to action on bond of judge of probate court. State v. Henderson, 120 Ga. 780, 48 S.E. 334 (1904).    This section does not apply to action on open account. Anderson v. Pollard & Co., 62 Ga. 46 (1878).   Representative unlawfully in possession of property not shielded by section.    - Provision that action against representative of estate may not be brought until 12 months (now six months) after probate or grant of letters of administration applies to actions seeking recovery on some claim against the estate of the deceased; it affords no shield for one who, though the representative of a deceased person, wrongfully and illegally seizes and holds property that does not belong to the estate. Kinney v. Robinson, 181 Ga. 837, 184 S.E. 616 (1936).    When a surviving member of a partnership brought an action against the executor of the estate of a former partner, personally and in the member's representative capacity, alleging that the defendant had illegally assumed possession of partnership assets and that the assets were necessary to wind up the affairs of the partnership which was alleged to be indebted to plaintiff in an uncertain sum, and praying for a receiver, an accounting, and other relief, this section, providing that action against representative of estate may not be brought until 12 months (now six months) after the probate of the will or granting of letters of administration, had no application. Kinney v. Robinson, 181 Ga. 837, 184 S.E. 616 (1936).   Action against survivor, representative, or both.    - Under this section, plaintiff is expressly authorized, at the plaintiff's discretion, to bring an action against the survivor, against the representative, or against both in the same action. Leonard v. Collier, 53 Ga. 387 (1874); Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 65 S.E. 35 (1909).    Defendant may be sued in same action in two characters, as executor of maker of promissory note and as individual endorser. Roark v. Turner, 29 Ga. 455 (1859).    Plaintiff was not bound to join representatives of deceased directors in action against the survivor. Hargroves v. Chambers, 30 Ga. 580 (1860).    Action brought against surviving partner and administrator of deceased partner, under this section, could not be discontinued as to the former. Pullen v. Whitfield, 55 Ga. 174 (1875); McNaught & Co. v. Bostick, 71 Ga. 782 (1883).   Administrator could not be joined after judgment.    - After the plaintiff elected to proceed against survivors and took judgment against them, the plaintiff could not afterwards make the administrator of the deceased a party. Harrell v. Park, 32 Ga. 555 (1861).    Cited in Sanders v. Etcherson, 36 Ga. 404 (1867); Mills v. Scott, 99 U.S. 25, 25 L. Ed. 294 (1879); Irvine v. Irvine, 145 Ga. 660, 89 S.E. 746 (1916); Lane v. Tarver, 153 Ga. 570, 113 S.E. 452 (1922).   RESEARCH REFERENCES   Am. Jur. 2d.   - 1 Am. Jur. 2d, Abatement, Survival, and Revival § 89. 59 Am. Jur. 2d, Parties, § 149 et seq.   C.J.S.   - 1 C.J.S., Abatement and Revival, §§ 127, 128, 133. 67A C.J.S., Parties, §§ 76, 78.   ALR.    - Actions at law between partners and partnerships, 21 A.L.R. 21.    Liability of surety as affected by running of limitation in favor of principal or cosurety, 122 A.L.R. 204.    Rendition of services, transfer of property, or similar benefits, other than money or obligation to pay money, as part payment tolling, or removing bar of, statute of limitations, 139 A.L.R. 1378.   Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.   Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.   Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.