28 Ga. 169 | Ga. | 1859
By the Court.
delivering the opinion.
Was the court right in overruling the motion ?
The motion was made by the plaintiff, the original trustee, and was, in substance, that he might be dismissed from the case, and Addison Taliaferro put in his place. This motion he supported by evidence showing that, by a regular proceeding in court, he had been removed from
We see no reason why the motion should not have been allowed. The removal of the trustee caused the action to become defective; to become subject to a plea in abatement. The action, however, was still in court, and the old trustee was still plaintiff. The action was still in a state to need amendment; to need a substitution of the new trustee, as plaintiff, for the old. And the amendment act of 1854 says, that pleadings shall be amendable in all respects, at any stage of the cause. Of course the mode must be by motion.
It was argued, that before Taliaferro could become trustee, there would have to be a conveyance to him of the trust property by the old trustee. It is unnecessary to decide this question, and it is not decided. The proof was, that Taliaferro had been appointed to the place of the old trustee, by a court having jurisdiction' to make the appointment. We, therefore, are to presume, at least prima facie, that everything was done by the court that was necessary to make the appointment effectual. Consequently we are to presume that, if a conveyance from the old trustee to the new was necessary, such a conveyance there was.
Judgment reversed.
