31 S.E.2d 648 | Ga. | 1944
1. In every suit there must be a legal entity as the real plaintiff, either a natural or artificial person, or a quasi-artificial person, such as a partnership; and where a suit is brought in a name which is neither, it is a nullity, and there is nothing to amend by.
2. The act of 1937 (Ga. L. Ex. Sess. 1937-38, p. 823), defined as "Glynn Zoning Regulations," does not create the "Commissioners of Roads and Revenue" of Glynn County as a legal entity to institute a suit; and the suit in the instant case, having been brought by and in the name of "Commissioners of Roads and Revenue," and not in the names of the commissioners in their representative capacity, was a nullity, there was no case in court, and the trial judge erred in overruling the general demurrer pointing out this defect.
To this petition the defendant filed a general demurrer, one ground of which specified "that there is no party plaintiff thereto." The plaintiff offered an amendment adding the names of the commissioners, so that, as amended, the petition read: "The petition of the Commissioners of Roads and Revenue for Glynn County, Georgia, the governing authority of Glynn County, a political subdivision of the State of Georgia, the members of said commission being R. A. Gould, V. H. Royal, C. V. Abbott, W. McDonald Harley, J. B. D. Paulk, R. L. Radcliffe, and J. L. Owens, all of Glynn County, Georgia, respectfully shows unto the court the following facts, to wit." The amendment was allowed, and the demurrer overruled. Exceptions pendente lite were duly filed to the allowance of the amendment and to the overruling of the demurrer as follows: "1st. Because the same seeks to set up a new party plaintiff to said cause; and 2d, because the petition, as drawn, being without a party plaintiff, there is nothing before the court, and consequently nothing by which to amend."
(After stating the foregoing facts.) The question here presented is whether a plaintiff, denominated as "Commissioners of Roads and Revenue of Glynn County, Georgia, the governing authority of Glynn County, a political subdivision of the State of Georgia," is such an entity as can maintain a suit in court. This court is fully committed to the proposition that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity, either as a natural or an artificial person. In every suit brought in this State, there must be a real plaintiff and a real defendant. The plaintiff or defendant may be a natural or an artificial person, or a quasi-artificial person, such as a partnership. If the suit is brought in a name which is neither that of a natural person, nor a corporation, nor a partnership, it is a *324
mere nullity, and therefore, with no party plaintiff, there is no case in court, and consequently nothing to amend by. Barbour v.Albany Lodge,
Where, however, the name imports a corporation, or imports a partnership, an amendment declaring the status of the party may be allowed. Wilson v. Sprague Machine Co.,
In certain cases, where no proper attack is made on the named party and the suit proceeds to judgment, it is then too late to raise the question. Saint Cecilia's Academy v. Hardin,
In the instant case, the question is properly raised by demurrer, and the plaintiff in error contends that, in the suit as originally brought, denominating the plaintiff as "Commissioners of Roads and Revenue of Glynn County, Georgia," etc., such name was not one of a natural person, a corporation, or a partnership, and did not import the name of a corporation or partnership; but that to constitute a proper plaintiff, the suit should have been brought in the names of the commissioners in their representative capacity. *325
The county, as defendant in error, insists that the authority for instituting the suit as brought is authorized by the act of the General Assembly under the "Glynn Zoning Regulations" (Ga. L. Ex. Sess., 1937-38, p. 823). This act, after granting powers to adopt building regulations, and providing for the machinery to put a zoning plan in operation, under section 14, which makes provision for its enforcement, says: "In case any building or structure is . . erected, . . in violation of this act or of any regulation . . enacted or adopted by the Commissioners of Roads and Revenue under the authority granted by this act, such commissioners, the county attorney, or any owner of real estate within the district in which such buildings, structure, or land is situated, may, in addition to other remedies provided by law, institute injunction . . or any appropriate action . . to prevent, enjoin, abate, or remove such unlawful . . construction."
The attorneys for the county take the position that the legislature in section 14 of the zoning act, a portion of which is above quoted, designated the "Commissioners of Roads and Revenue" as an entity to institute proceedings growing out of violations under the act; and insist, in view of the law that the courts will take judicial cognizance of who have been commissioned by the Governor as commissioners (Bailey v.McAlpin,
To hold that the nominated plaintiff in the instant suit as originally brought was a legal entity, would be contrary to the decisions to which this court has long been committed; or to construe section 14 of the act as creating the "Commissioners of Roads and Revenue" as a legal entity to institute a suit, would require an interpretation of the intent of the legislature which is not expressed in the act. Nor is there any ruling here made contrary to the decision in Stephens v. Seaboard Air-Line Ry.Co.,
Accordingly, the overruling of the general demurrer of the defendant was error. Subsequent proceedings being nugatory, it becomes unnecessary to rule upon other questions raised.
Judgment reversed. All the Justices concur, except Bell, C.J., and Jenkins, P. J., who dissent. *327
