171 Ga. 475 | Ga. | 1930
Dissenting Opinion
dissenting. Prom an inspection of the record I have arrived at the opinion that this is a moot case, and that the bill of exceptions should be dismissed. The exception is to the overruling of a demurrer filed by A. M. Small. It does not appear from the record that A. M. Small is a party to the litigation, nor does it appear that A. M. Small will be in any way affected by the final outcome of the litigation. Small is not named in the petition. There is no order of the court naming Small as a party. The only references to Small in the entire record are: (1) The report of the receivers appointed by the court, as follows: “Your receivers show that thru their attorney at law they have examined the records of Pulton County pertaining to this property, and that the following persons should be made parties hereto: .' . Annie M. Small.” (2) The demurrer filed by an attorney for A. M. Small.
I do not conceive it to be within the duties required by law of receivers to affect in any way the matter of who shall be parties to litigation. 23 Buling Case Law, 7, § 2, states: “Generally speaking, a receiver is not an agent, except of the court appointing him; the very term receiver negatives such an idea. He is merely a ministerial officer of the court, or, as he is sometimes called, the hand or arm of the court. He stands in an indifferent attjtude, not representing the plaintiff or the defendant, but really representing
Based upon what is said above, it is my opinion that the judgment overruling the demurrer was a nullity, because the court had no jurisdiction of the demurrant; and consequently the case in this court is moot, and the bill of exceptions should be dismissed. I am authorized to say that Presiding Justice Beck concurs in this dissent.
Lead Opinion
A petition must plainly and distinctly set forth a cause of action against a defendant. The petition in this case fails to set out any cause of action in favor of the plaintiff against the defendant Small. It follows that the judge erred in overruling the demurrer filed by that defendant.
Judgment reversed.