100 Ga. 123 | Ga. | 1897
The Texas Grate- Company, alleging itself to be a cor•poration existing under the laws of the State of Texas, on the 9th day of 'September, 1884, brought a suit against the defendant, the Atlanta & West Point Railroad Company, for damages alleged to have resulted to it in consequence of a failure upon the part of the defendant company to carry •and safely deliver, within a reasonable time; certain mer•chamdise from the city of Atlanta, Georgia, to Dallas, 'Texas, there to be delivered to the plaintiff, or to H. M. Beaty & Company for plaintiff. No written plea was filed do this action by the defendant, but it appeared by counsel, :(and made defense. There was a trial of this action, resulting in a verdict in favor of the plaintiff, and a judgment refusing a new trial was reversed by this court. 81 Ga. 602. On the 30th of December, 1895, the plaintiff amended its declaration by alleging that H. M. Beaty & Company was a partnership composed of four named persons, and that the merchandise in question was consigned to them for delivery, and for-the nse and benefit of the Texas Grate Company, and said Beaty & Co: now sue in this case for the 'use of said Texas Grate Company; and by amendment their mame was inserted as plaintiffs instead of that of the Texas •Grate Company. No exception was filed to the allowance ■of this amendment, but the case being continued was again called for trial on the 14th day of April, 1896, at which time the defendant filed an amended plea denying the corporate existence of the Texas Grate Company, and alleging that the non-existence of that company -as a corporation had come but recently to its knowledge, that the effect of the amendment theretofore allowed was to substitute H. ÜM. Beaty & Co. as plaintiffs in the cause, and that as to them 'the right of action was haired by the statute of limitations. 'To this plea the- plaintiffs demurred upon the grounds: 1st. That the defendant, not having excepted to the judgment, .allowing the amendment to' the declaration, was concluded
Error was assigned upon tbe refusal of tbe court to exclude-:
It may be stated as elementary law, that the existence of .a party plaintiff is indispensable to the maintenance of an .action, and the non-existence of a plaintiff who- professes to .sue is always a good reply to the progress of the action, unless the defendant has in some manner been estopped from .asserting the contrary. The probabilities are, in the present case, had the Texas Grate Company as a corporate entity insisted in its own name upon the prosecution of the action first instituted by itself, that the failure of the defendant to file a plea of nul tiel corporation in the first instance would have concluded it upon the question of the corporate existence of the plaintiff. But it so- happens, that although the .action sought to be instituted by the Texas Grate Company was a void action, for the want -of a party plaintiff, the defendant, not pleading in abatement, having acquiesced in the action and contested plaintiff’s right to recover for years, without a suggestion of the non-existence of the plain-tiff as a corporate- entity, was estopped, after pleading to the merits, to urge the invalidity of the action because ■of the non-existence of a plaintiff. This failure to timely -call in question the existence of the plaintiff did not have the •direct effect to render that valid which was theretofore void, but practically the same result follows, its effect being to cut off the defendant from the right to urge this invalidity, leaving the action as it then stood a valid action in the name of the Texas Grate Company against the defendant. It will be seen, however, from an inspection of the record, -that the plaintiff sought to amend, and did in fact amend its declaration by inserting the name of another person, in whom it then alleged the cause of action to be, as using for its use, and although no exception to the -allowance of this amendment was taken upon the ground that its effect was to introduce a new and distinct, party, yet, in order to- recover in the name of’the substituted plaintiff, it was necessary to
Judgment affirmed.