Bunn & Trawick v. England

122 Ga. 833 | Ga. | 1905

Simmons, C. J.

1. Under the fact's alleged in the petition, a sufficient cause of action was set forth to have been submitted to a jury, and the court erred iii dismissing it on demurrer.

2. As the trial judge did not put his decision upon the ground that there was a nonjoinder of parties, but upon the merits of the case, this court directs that the vendors of the thirty per cent, interest in the estate to the plaintiffs, who are necessary parties to the suit, be made parties defendant, and that the case then proceed to trial on its merits.

Judgment reversed, with direction.

All the Justices concur, except Candler, J., absent.

The defendant demurred, for want of equity and a cause of action, and because: (a) It is not alleged that plaintiffs rendered services for either of the defendants, or that the defendants assumed or agreed to pay for any services rendered; nor is any fact alleged that tends to show that plaintiffs have a lien on any of the property' of the estate for their fees. (5) There is a misjoinder of parties defendant, for the reason that if the plaintiffs have any lien they can establish, they can do so without making Willingham a party; if Willingham has assumed or become responsible for the fees, there is' no necessity for making England a party, as no insolvency is alleged as to Willingham. (c) There is a nonjoinder of parties. If plaintiffs have a right to sue, it is against Mrs. Denton, Mrs. McCormick, and Miss Anna Powell. As it is alleged that they contracted for and owe the fees, they are necessary parties. The defendants sued could not be held liable unless it should appear that the money could not be made out of Mrs. Denton, Mrs. McCormick, and Miss Powell. The court sustained the demurrer, and the plaintiffs excepted.

O. G. Janes and Arnold & Arnold, and Bunn & Trawiek, for plaintiffs,

contended that the contract in question was in effect a sale and conveyance, and not a mere lien, and cited Civil Code, § 3538. . ,

John K. Davis, for defendant's,

cited Civil Code, §§ 2814, 2804, 2693; Ga.B. 101/80; 102/24; 104/353; 107/454; 99/629; 64/579; 72/848; 98/158; 73/322 ; 92/499; 104/353; 109/601; 82/798; 118/483; 62/164; 79/716; 82/166 ;, .10-2/174; 104/248; 114/303.