1. While there are some exceptions to the general rule that requires that estoppel or res judicata be specially pleaded in the trial court, there is no exception to the rule that estoppel or res judicata must be first urged and ruled on by the trial court before the Supreme Court will decide such questions.
2. Since the law authorizes a temporary administrator to sue to collect debts due the estate or to recover personal property of the estate, persons so sued may plead any proper setoff or counterclaim and obtain judgment therefor against the estate represented. The priority of the creditor's claim against the estate, however, is controlled by the law, and is not determined or changed by such judgment.
3. The judgment referred to in the preceding headnote places no liability upon the temporary administrator personally.
No. 15519. JULY 3, 1946. The bill of exceptions, brought to this court by Mrs. Ellen K. Auld, as administratrix of the estate of Mrs. Gertrude Cox, deceased, assigns error on a judgment of the Superior Court of Fulton County overruling her motion to set aside a judgment of that court rendered against her in favor of R. H. Schmelz in the particulars hereinafter mentioned. In Auld v. Schmelz,199 Ga. 633 (34 S.E.2d 860), this court had under consideration, on a ruling on general demurrer, the question whether or not the trial court erred in refusing to reopen that judgment and allow a petition filed by the present plaintiff in error to be treated as a plea of plene administravit; and for a proper understanding of the question *Page 43 here involved, certain alleged facts as stated in the reported case, supra, and apparently admitted in the briefs of counsel here are pertinent. On October 10, 1943, Mrs. Gertrude Cox filed in the Superior Court of Fulton County an equitable petition against R. H. Schmelz and the sheriff and deputy sheriff of Fulton County to enjoin the prosecution of a dispossessory-warrant proceeding instituted against her by Schmelz, and the interference with the petitioner in the removal of a certain building from land owned by Schmelz, and seeking to have her right to remove the building established. Schmelz had executed a lease of a lot to one who, with the consent of Schmelz, transferred the lease to Mrs. Cox. The lease provided that improvements erected upon the lot might be removed upon the termination of the lease with rentals paid. The building here involved was erected by the original lessee, and it was the contention of Mrs. Cox that Schmelz had fraudulently terminated the lease, and that she was entitled to remove the building as personalty. Also involved was the question of unpaid rents, which Mrs. Cox tendered into court, at $35 per month as provided by the terms of the lease. Mrs. Cox died pending the action, and Mrs. Ellen K. Auld as temporary administratrix was substituted as the petitioner.
On June 4, 1944, the jury returned a verdict in favor of the petitioner for the building, with the right to remove it, and in favor of the defendant for $630 as rent for the premises with a special lien on the building for such amount, and judgment was entered accordingly. On July 5, 1944, the petitioner consenting, the judgment was amended by adding thereto the following: "This judgment and decree are rendered against Ellen K. Auld, as temporary administratrix of the estate of Gertrude Cox in her representative capacity; and defendant shall have and recover of plaintiff the sums set forth of the above, to be levied on the goods and chattels, lands and tenements of the deceased, Gertrude Cox, in the hands of Ellen K. Auld, as temporary administratrix of the estate of Gertrude Cox, for the purposes of administration."
After the decision by this court in the reported case, supra, affirming the trial court's judgment on demurrer, Mrs. Auld, as temporary administratrix, filed on March 26, 1946, a petition to set aside the judgment as amended in so far as it purports to be a general judgment against her or the estate then in her custody. *Page 44 The petition recited her appointment as temporary administratrix on November 16, 1943, the equitable proceeding in which the building as personalty under the lease was sought to be removed by her, the original judgment and the amendment thereto. It further alleged the following: On February 14, 1946, R. H. Schmelz filed suit in the Superior Court of Fulton County, being case No. 156,961, against the petitioner, Hartford Accident Indemnity Company, surety on her bond as temporary administratrix, and Frampton E. Ellis, permanent administrator of the estate of Gertrude Cox, setting forth the judgment in the equitable proceeding, and alleging that the petitioner had failed to pay the judgment, and praying for a judgment for $630, together with interest at 7 percent from the date of the judgment, against the surety on the petitioner's bond. It appearing on the face of the record that the petitioner is the temporary administratrix of the estate of Gertrude Cox, and therefore having no authority to disburse any funds, and not being subject to suit except by the permanent administrator, Frampton E. Ellis, the court was without authority to enter any judgment against the petitioner except a special judgment binding the building for which suit was filed, and because of this amendable defect appearing on the face of the record the judgment is invalid and should be set aside. The prayers were that the judgment be set aside for a defect appearing on its face, in so far as it purports to be a general judgment against the petitioner in her representative capacity, and that R. H. Schmelz be required to show cause why the relief prayed for should not be granted.
The exception here is to the judgment overruling the motion to set aside the judgment as prayed.
The plaintiff in error concedes in her brief that, Mrs. Cox having brought the equitable action to enjoin the dispossessory-warrant proceeding and recover the building, which under the lease was personalty, it would have been within the power of a court of equity to have made the judgment in her favor subject to equities in favor of the defendant with respect to the building itself; but contends that the amended judgment de bonis testatoris against her as temporary administratrix is invalid and unenforceable on its face.
The defendant in error makes in effect two contentions: (1) That, by reason of having assumed a particular position in a judicial *Page 45 proceeding and invoked a judgment and having consented to the amended judgment, she is estopped to have the judgment set aside. (2) That, as shown by the record when the case was before this court in 199 Ga. 633 (supra), the petition filed on August 31, 1944, not only sought to have the judgment reopened and the petition treated as a plea of plene administravit, but contained a prayer that the judgment be vacated and set aside; and that, since this court affirmed the judgment of the trial court sustaining a general demurrer to the petition, the question now raised by the writ of error is res judicata. 1. It is the general rule that an equitable estoppel must be specially pleaded in the trial court. Fidelity Co. v. Nisbet, 119 Ga. 316 (7) (46 S.E. 444); McCall v. Fry, 120 Ga. 661 (48 S.E. 200); Irvine v. Wiley, 145 Ga. 867 (3) (90 S.E. 69);Askew v. Amos, 147 Ga. 613 (1) (95 S.E. 5); DeVore v.Baxter, 155 Ga. 109 (3) (116 S.E. 610); Hightower v.Blakely Hardwood Lumber Co., 163 Ga. 776 (1) (137 S.E. 22);National Land Coal Co. v. Zugar, 171 Ga. 228 (3) (155 S.E. 7). An exception exists in statutory claim cases. Frick Co. v. Taylor, 94 Ga. 683 (2) (21 S.E. 713); Wright v.McCord, 113 Ga. 881 (2) (38 S.E. 510); Askew v. Amos, supra. Another exception exists in favor of a plaintiff where the defendant sets up a defense in his answer and the plaintiff relies upon estoppel to defeat it. The plaintiff is thus relieved of the necessity of pleading estoppel because under the Neal Pleading Act no replication is needed. Brown v. Globe c. FireIns. Co., 161 Ga. 849, 854 (2) (133 S.E. 260); MetropolitanLife Ins. Co. v. Bugg, 48 Ga. App. 363 (4) (172 S.E. 829);State Mutual Ins. Co. v. Harmon, 72 Ga. App. 117, 120 (2) (33 S.E.2d 105). Nor can a plea of res judicata be set up for the first time in the Supreme Court. Durham v. Ramhurst LumberCo., 145 Ga. 189 (1-a) (88 S.E. 932). The record now brought to this court does not show that any plea of estoppel or res judicata was filed in the trial court, or that any motion was urged to deny the motion to set aside for any reason. We, therefore, consider the question here presented independently of the doctrine of estoppel *Page 46 or res judicata, since it is settled law that a question not raised in the trial court will not be considered here. Durden v. Meeks, 110 Ga. 319 (35 S.E. 153); Barham v. Weems,129 Ga. 704 (3) (59 S.E. 803); Wilson v. Stanford,133 Ga. 483 (5) (66 S.E. 258); Whitney v. Central Georgia PowerCo., 134 Ga. 213 (1) (67 S.E. 197, 19 Ann. Cas. 982);Mobley v. Russell, 174 Ga. 843, 847 (5) (164 S.E. 186);McIntire v. McQuade, 190 Ga. 438 (9 S.E.2d 633);Calhoun v. Babcock Lumber Co., 198 Ga. 74, 83 (30 S.E.2d 872).
2. The question for our decision is whether or not the judgment in favor of the defendant, which was rendered in an action prosecuted by the temporary administratrix, is legal against either the estate represented by the temporary administratrix or against the temporary administratrix individually. The action by the temporary administratrix was authorized by law. Code, § 113-1511. It is provided by the section cited that a temporary administratrix may sue for the collection of debts or personal property of the estate. The action here was one for the recovery of personal property, and in the prosecution of that suit the temporary administratrix was the legally constituted agent or representative of the estate and was acting under authority of law. Mason v. Atlanta Fire Co.,70 Ga. 604, 608 (48 Am. R. 585); Langford v. Langford,82 Ga. 202 (8 S.E. 76); Barfield v. Hartley, 108 Ga. 435 (33 S.E. 1010); Banks v. Walker, 112 Ga. 542 (37 S.E. 866); Doris v. Storey, 122 Ga. 611 (50 S.E. 348); Ward v. McDonald, 135 Ga. 515 (69 S.E. 817); Baumgartner v.McKinnon, 137 Ga. 165 (73 S.E. 518, 38 L.R.A. (N.S.) 824); Chattanooga c. Ry. Co. v. Morrison, 140 Ga. 769 (79 S.E. 903); Babson v. McEachin, 147 Ga. 143 (93 S.E. 292);Grooms v. Mixon, 150 Ga. 335 (103 S.E. 845); Borderick v. Reid, 164 Ga. 474 (139 S.E. 18); Furr v. Jordan,196 Ga. 862, 873 (27 S.E.2d 861). In such a situation, what right did the law give the defendant, who was bound to defend such suit, to therein set off and have adjudicated any counterclaim or right he had against the identical estate that was suing him? We have been unable to find any expression on this precise point in any statute or decision of this State. We must, therefore, reach a decision that will, if possible, harmonize with existing law and conform to common justice. We must decide whether this defendant and others similarly situated must bear the expense and trouble of maintaining *Page 47 defenses against such an action and remain silent and inactive as to any counterclaim that would ordinarily be a proper matter for setoff in the same suit, and suffer judgment in favor of the estate, by authority of which he is deprived of his property or money, and thereafter prosecute an action against the permanent administrator of the estate for the adjudication of his claim and the recovery of money or property, which may well exceed that of which he was deprived by the judgment in favor of the temporary administrator. Such an inequality of rights under the law would hardly conform to the solemn mandate of the Constitution (article 1, section 1, paragraph 2, Ga. L. 1945, p. 8), which declares that "Protection to person and property is the paramount duty of government, and shall be impartial and complete." The protection of the estate on the one hand and the person sued by the temporary administratrix on the other hand would not be "impartial and complete." The courts would be needlessly burdened with the trial of two cases when both could have been easily and fairly tried in one proceeding. For the reasons stated, we are satisfied that the defendant here, as well as any defendant, when similarly sued by a temporary administratrix, is authorized under the law to plead any proper counterclaim against the estate and to obtain a judgment therefor which is binding on the estate. If it be argued that the interest of the estate would thus be jeopardized, because the temporary administratrix did not possess the necessary information concerning the estate to enable her to properly defend against such counterclaim, the answer to such argument is that the law authorizes this same uninformed representative of the estate to act for and on behalf of the estate in subjecting others to such suits as she might choose to institute against, them, and it is no worse for the estate represented to be without full information than for the person sued to suffer the suit while there exists the same lack of full information.
In reaching our decision on this question, we have encountered difficult and perplexing collateral questions, one of which is whether or not a money judgment thus obtained against a temporary administratrix would give priority from the date of its rendition in the distribution of the estate. The answer to this question would be that the priorities of creditors are fixed at the time of the death of the intestate, and this status of creditors can not be changed by *Page 48 any action of an individual creditor, but each is entitled to the payment of his claim against the estate according to its priority as fixed at the time of the intestate's death. Code, § 113-1508;Davis v. Smith, 5 Ga. 274 (47 Am. D. 279); Carter v.Penn, 79 Ga. 747 (4 S.E. 896); Third National Bank v.Strauss, 135 Ga. 324 (3) (69 S.E. 482). As ruled in each of the above-cited cases, "Judgments obtained against an administrator after the death of his intestate rank no higher than the demands on which they are founded." In Green v.Allen, 45 Ga. 205 (2), and Wooten v. Hartley, 186 Ga. 639 (1) (198 S.E. 750, 121 A.L.R. 653), it was held: "In this State a creditor can not get a preferred lien on the assets of an estate as against other creditors of equal degree by getting the first judgment against the administrator." Another perplexing question is that if, for example, a temporary administrator of an estate sued to collect a claim of $100, and the person sued held a claim against the estate for an equal amount, it would seem like trifling with the law to require the person sued to suffer the rendition of a judgment in favor of the estate against him without being permitted to set off his claim of $100 and thus avoid a judgment against him. If it be said that a counterclaim to the extent of the amount sued for might be pleaded as a setoff, the question then arises as to whether or not the creditor thus sued, when presenting to the permanent administrator for payment the remainder of his claim in excess of the setoff, would be met with the legal situation that there had been a previous adjudication and that his claim was invalid. With full appreciation of these various troublesome questions, we are of the opinion that the conclusion we have reached is the only one that insures ultimate justice between the parties and before the law.
3. What we have just ruled relates solely to the liability of the estate. We are satisfied that under the law no such judgment can place a legal liability upon the individual who happens to be a temporary administrator. As a general rule, a judgment can place liability only upon the parties thereto. Under this rule, if a party to such a judgment is one in his representative capacity, the judgment is binding upon him as the representative, and not as an individual. Our Code, § 113-2110, provides an exception to this general rule and is applicable to executors and administrators. The administrator there referred to is a permanent administrator *Page 49 and not a temporary administrator. This is made plain by the very terms of the statute, and the individual liability there provided for arises when none of the pleas mentioned is filed by the administrator, or if filed the finding is against it. InBaumgartner v. McKinnon, 137 Ga. 165, 166 (supra), it was held by this court that the pleas referred to in the statute could not be filed by a temporary administrator. It is obvious that a temporary administrator would not be in position to file such pleas, since he has no right to take over the real estate belonging to the estate, and there exists no reason or provision of law for his ascertaining the amount and nature of claims against the estate, and his sole duty is that of collecting in the personal property of the estate and preserving it. There is nothing in his duties that would enable him to ascertain the relative rank and priorities of creditors' claims, and certainly he could not be personally liable under such circumstances.
On application of the foregoing rule to the judgment against "Ellen K. Auld, as temporary administratrix of the estate of Gertrude Cox in her representative capacity," which the motion sought to modify or set aside, the said judgment was legal and constituted a valid judgment against the estate, and places no liability upon the temporary administratrix personally. Accordingly, the court did not err in denying the motion to modify or set aside the same.
Judgment affirmed. All the Justices concur, except Jenkins,P. J., and Atkinson, J., who dissent.