15 Ga. App. 133 | Ga. Ct. App. | 1914
Mrs. T. G. Jones brought suit in her own name against Joe Toole in the city court of Miller county on a promissory note for $1,000, due October 1, 1912. The note was payable to John Cook Sr., and on the back of it was the following: “Transfer within note to Mrs. T. G. Jones. May 16, 1913. W. C. Cook, Admr.” The defendant demurred to the petition, on the ground that the note showed no title in the plaintiff. The plaintiff amended her petition by setting out that John Cook Sr. owned the note at the time of his death, that W. C. Cook was the administrator of the estate of John Cook Sr., that the note was duly transferred to Mrs. Jones by the administrator, and that the transfer was made without a public sale and without an order of court. The defendant filed a second demurrer, on the grounds that the petition failed to show that title had ever passed out of the administrator, and that it failed to show that the plaintiff purchased the note at administrator’s sale, or that the note was ever sold under order from the court of ordinary. The plaintiff again amended the petition, by striking the first amendment, and making the suit proceed as in the name of W. C. Cook, administrator of the estate of John
1. We are of the opinion that there is no merit in that part of the demurrer which attacks the petition on the ground that the administrator had no right to sue for the use of the plaintiff. “When it becomes necessary for the purpose of enforcing his rights, a party plaintiff may amend by substituting the name of another person in his stead, suing for his use.” Musgrove v. Luther Pubg. Co., 10 Ga. App. 650 (73 S. E. 695); Metropolitan Life Ins. Co. v. Morrow, 10 Ga. App. 433 (73 S. E. 607); Civil Code, § 5689. “A party who brings a suit upon a chose in action . . [when] he has only the equitable title thereto, may amend his declaration by adding the name of the person who has the legal title, suing for his use.” Estes v. Thompson, 90 Ga. 698 (17 S. E. 98). The fact that the assignor of the note sued on is the administrator of the estate of the original owner does not constitute an exception to this rule.
2. Since such an amendment does not substitute for the original plaintiff a new and distinct party, but “merely truly characterizes the original plaintiff” (Metropolitan Life Ins. Co. v. Morrow, supra), the amendment in the present case did not render ineffectual the notice of intention to sue, given for the purpose of fixing liability for attorney’s fees, which indicated that the suit was to be brought by the holder of the note. The court therefore properly overruled the first objection made in the demurrer as to the notice of intention to sue.
3. We are, however, of the opinion that the notice of intention to sue was for another reason “insufficient in law to bind the de
The judgment of the court below is affirmed, with direction that, upon the further hearing of the case, the third paragraph of the defendant’s demurrer be sustained, and that the fourth paragraph of the plaintiff’s petition be stricken.
Judgment affirmed, with direction.