150 Ga. 579 | Ga. | 1920
1. So far as meritorious, tlio grounds of special demurrer to tlie petition were met by appropriate amendment. The petition as amended set forth a cause of action, and tlie court did not err in overruling the demurrers.
2. Where a married woman sued her husband and another holding under Mm, to cancel deeds executed by tlie woman to the husband and by him to his transferees, and pending the action the husband died leaving a will in which his wife (plaintiff) and another were named as executors, and the will was duly probated, and the executors qualified, and afterward the death of the husband was suggested of record and the executrix (plaintiff) was made a party defendant, and thereafter her codefendant, moved to dismiss the action upon the ground that the executrix could not be both plaintiff and defendant, and thereupon the plaintiff moved to strike the name of the executrix as party defendant and substitute in her place the name of her coexecutor as one of the parties defendant in the case, Held: The suit being in equity, and the general rule at common law not applying, the court erred in disallowing the amendment offered by the plaintiff, and in dismissing the case.
The, court did not err in sustaining the motion of the bank and in dismissing the case. “ As a general rule a person cannot be plaintiff and defendant in the same suit; and the rule applies though such person sues in one capacity and defends in another.” 20 R. C. L. 663, § 2; 1 C. J. 983, 984, § 90; Williams v. McHugh, 17 Ga. App. 59 (86 S. E. 272); Miller v. Thorn, R. M. C. 180; Livingston v. Livingston, 2 Mill (S. C.), 428 (12 Am. D. 684) ; Brown v. Mann, 71 Cal. 192 (12 Pac. 51); Byrne v. Byrne, 94 Cal. 576 (27 Pac. 1115, 30 Pac. 196); Burley v. Harris, 8 N. H. 233 (29 Am. D. 650) ; Hill v. McPherson, 15 Mo. 204 (55 Am. D. 142) ; Swoope v. Swoope, 173 Ala. 157 (55 So. 418, Ann. Cas. 1914A, 937); compare Oliver v. Hammond, 85 Ga. 323 (11 S. E. 655). Whether this rule is applicable only in cases at ■ law, and inapplicable in eases proceeding on the equity side of the court, it is unnecessary to say further than that the mere fact that the proceeding is in equity will not suffice to constitute an exception to the general rule; at least the allegations must show equitable reason to justify an exception to the general rule. The facts of this case are insufficient to constitute an exception to the general rule that a person cannot be plaintiff and defendant in the same suit. The court did not err in refusing to strike the name of Mrs. Berry (MacDougall), executrix, as defendant, and to substitute therefor the name of her co-executor, and to allow the case to proceed as thus amended.
cited, on dismissal of action: Civil Code, § 5738; Allen v. Solomon, 54 Ga. 484. On demurrer to petition: Stonecipher v. Kear, 131 Ga. 688, and cit.; Civil Code, §§ 4179, 4188; Bashinski v. Swint, 133 Ga. 38; Walls v. Smith, 19 Ga. 9; LaRoche v. Falligant, 130 Ga. 596; Sears v. Bagwell, 69 Ga. 429; McLennan v. Graham, 106 Ga. 211; Dinkler v. Potts, 90 Ga. 103; Collins v. Moore, 115 Ga. 327; 6 Cyc. 1013; 27 Cyc. 1191.
cited, on dismissal of action (omitting anything cited in the syllabus, supra) : Civil Code, § 5739; Croswell’s Exrs. & Admrs. 180; Powell’s Actions for Land, §§ 248, 407, 408, and cit.; Biggs v. Silvey, 140 Ga. 762; Taylor v. Colley, 138 Ga. 41; Kehoe v. Rourke, 131 Ga. 269; Brown v. Wilcox, 147 Ga. 546; Gibbs v. Harrelson, 147 Ga. 404; Jackson v. Harrison, 147 Ga. 631; Zeigler v. Arnett, 142 Ga. 487; Lowery v. Idleson, 117 Ga. 778; Reed v. Aubrey, 91 Ga. 435; Mercer v. Holloway, 23 Ga. 151; Fleming v. Foran, 12 Ga. 594; 15 Enc. Pl. & Pr. 482; 8 Id. 680, 695; 18 Cyc. 967, and cit.; Dickerson v. Robinson, 6 N J. L. 195 (10 Am. D. 396). On demurrer to petition: Civil Code, §§ 4369, 4521, 4526, 4537; Charleston &c. Ry. Co. v. Hughes, 105 Ga. 21; Echols v. Green, 140 Ga. 579; Williams v. Rhodes, 149 Ga. 170; Scaife v. Scaife, 134 Ga. 1; Pierce v. Middle Ga. Land &c. Co., 131 Ga. 99; Dotterer v. Pike, 60 Ga. 42; Sutton v. Aiken, 62 Ga. 742; Ford v. Blackshear Mfg. Co., 140 Ga. 670; Krueger v. MacDougald, 148 Ga. 429.