22 Ga. App. 696 | Ga. Ct. App. | 1918
1. A- suit can not be maintained against an unincorporated church. Mutual Life Ins. Co. v. Inman Park Church, 111 Ga. 677 (36 S. E. 880); Wynn v. Richard Allen Lodge, 115 Ga. 796 (42 S. E. 29); Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). Neither can a suit against an unincorporated church be converted by amendment into a suit against a corporation or body politic. Barbour v. Albany Lodge, 73 Ga. 474; Roberts v. Tift, 136 Ga. 901, 904 (72 S. E. 234). In the instant case the unincorporated organization which in the original petition was designated as defendant had no .legal existence, and an amendment attempting to allege that it was a body politic in. certain particulars and for specified purposes did riot save the petition, since the suit as originally filed was, a mere nullity and there was nothing to amend by. The plaintiff argues that the purpose of his'amendment was to bring the suit undey the provisions of section 2830 of the Civil Code (1910), but contends that this did not convert the unincorporated religious organization into a corporation. However, the title of that section is “Societies incorporated,” and the language thereof is tliat when there is a compliance therewith, such societies “are hereby made bodies politic and corporate for the purposes named.” The Supreme Court has also construed this section as creating a corporation. In the decision in the case of Mountain Top Missionary Baptist Church v. McLarty, 133 Ga. 548 (66 S. E. 243), it is said: “An action in tort is not maintainable by a church incorporated under the Civil Code [1895], § 2357 [1910, § 2830], in its corporate name,” etc. Then, too, the amendment did not show a compliance with the provisions of section 2830, supra.
2. The petition under review contained two counts, one.founded on contract and the other based on quantum meruit. The original petition failed to describe any property or to assert a lien thereon. Neither did the declaration set up a claim against a trust estate, under the Civil Code, § 3786 et seq. The plaintiff attempted by amendment to set up a lien against a certain, lot of land and to follow the proceeds of a sale of that particular lot into another lot subsequently purchased. Clearly this added a new and distinct cause of action to the original petition, subjecting it to demurrer for that reason. So, also, if the amendment could legally convert the original action into a claim against a trust estate, then obviously no parties other than the trustees of the
■3. The petition was subject to demurrer for th§ reasons stated above, and the trial court did not err in so holding. ’ s
Judgment affirmed.
Civil Code. (19101, §§ 2824-9, 2830, 3786 et seq.; Kelsey v. Jackson, 123 Ga. 113;