111 Ga. 677 | Ga. | 1900
Suit was brought in the city court of Atlanta, in the name of the Inman Park Presbyterian Church, of Fulton county, by George E. King and others, certain of its officers and .trustees, against the Mutual Life Insurance Company of New York, for the sum of $1,339.54 principal, $515.90 of which indebtedness was upon an open account, and the remainder thereof was upon nineteen promissory notes aggregating $836.64 principal. To this- petition the defendant demurred on the general ground that it set forth no cause of action ; and on the special grounds, that it does not appear from the petition that the Inman Park Presbyterian Church', named as plaintiff, has capacity to sue; and further because it affirmatively appears upon the face of the petition that the account and notes upon which the suit is based were and are not the property of plaintiff, but were at the time of filing said suit therein alleged to be the property of George E. King and others, individuals named in the transfers attached as exhibits to the petition. The court overruled the general ground, and gave petitioner the privilege of amending -its petition to meet the special grounds of the demurrer. In the amendment the first paragraph of the petition was stricken. It was admitted that the Inman Park Presbyterian Church was not a corporation, but was an unincorporated association, the business affairs of which were conducted for the church by the officers named in the original petition; and they asked to be allowed to proceed with
We think the court clearly erred in not sustaining the demurrer and dismissing the plaintiff’s petition. This was a suit originally instituted in the name of a certain designated church, which was suing by certain of its alleged officers. . . The record shows that the association named as a certain church in the petition was never incorporated. A suit can only be maintained by or in behalf of a natural or artificial person. The plaintiff in the present case evidently was neither; and it follows from this that, the action being instituted by no one having capacity to sue, there was nothing in the petition to amend by, and hence the court erred in allowing the amendment. The demurrer should have been sustained and the petition dismissed. This principle is decided in the case of Wilkins v. Church, 52 Ga. 351, where it was held : “A religious-society, which is not incorporated .according to law, or which has not recorded its name and objects, . . can not be sued as such. Its members are liable on its contracts as joint promissors or partners.” See also Jones v. Watson, 63 Ga. 679-680, where the amendment offered was similar to the one in the case at bar. The case of Barbour v. Albany Lodge, 73 Ga. 474, was a suit against certain lodges of Masons, designating them by name. The petition did not allege either that the defendants were corporations, or that the members were partners so as to he sued as such. It was there held by this court that there was no party defendant in the case, and a demurrer was properly sustained. It was further held that, as no person was sued, no case was in court, and there was nothing to amend by. We do not think- there is anything in the case of Gress Lumber Co. v. Rogers, 85 Ga. 587, at all in conflict with our decision in this ease. That was a- suit brought by the plaintiff for the purpose of recovering for material furnished for and used in the erection of a college building. Whether the college had been actually incorporated or not could have had no effect upon the equity
Judgment reversed.