74 Ga. 702 | Ga. | 1885
This was an action against the city of Atlanta to recover • damages for tearing down and destroying, without lawful cause or authority, a certain bill-hoard, the property of plaintiffs, who were partners in the business, and were duly licensed bill-posters under the ordinances of said city.
Pending the suit, one of the plaintiffs died, and an order was taken allowing it to proceed in the name of the survivor. The trial resulted in a verdict in favor of the plaintiff for three hundred dollars, and thereupon the defendant moved for a new trial, upon various grounds, which was overruled by the court, and the judgment overruling this motion is brought here upon bill of exceptions and writ of error for review.
“ When one or more of several parties, jointly interested in the property at the time the injury was committed, is dead, the action,”'says Chitty (1 Plead., 76), “ should be in the name of the survivor, and the executor or administrator of the-deceased cannot be joined, nor can he sue separately ; and therefore, to an action of trover brought by the survivor of three partners in trade, it cannot be objected that the two deceased partners and the plaintiff were joint merchants, and that, in respect to the lex mer~ eatoria, the right of survivorship did not exist, for the legal right of action- survives, though the beneficial inter
Judgment affirmed.