48 Ga. App. 338
Ga. Ct. App.
1934
Jenkins, P. J.

Suit wаs brought in the municipal court of Atlanta by the beneficiary of a policy of life-insurance against the insurance company, and a verdict and judgment were rendered in favor of the plaintiff. The poliсy contained a provision that “any assignment of this policy or of any of the benefits thereunder shall bе void and of no effect.” When it developed in the trial that the beneficiary, upon the death of the insured, wrote a letter to the company, authorizing it to pay the proceeds of the poliсy to the undertaker, and stating, “said policy of insurance having been transferred to [him] for funeral expenses,” under a ruling of the court the petition was amended, and thereafter it proceeded in the nаme of the beneficiary suing for the use of the undertaker entitled to the death benefits. The evidence was conflicting, and did not demand a verdict in favor of the company’s defense that the policy hаd lapsed on account of delay in the payment of premiums. The trial judge denied the defendant’s motion for a- new trial based on the general grounds and on thе special ground that “the evidence showed that the plaintiff had made a legal assignment of her right оf action, and had no right or authority to bring this suit in her name or for the use of the transferee.” On appeal by the defendant insurance company, the appellate division of the municipal court reversed the judgment denying a ‍‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌‌‌​‌​​​​​​​​‌​‌​‌‌​‌‌‌​​​​​‌‍new trial. On certiorari by the plaintiff from this judgment, the superior court entered an order that the “ within certiorari is overruled and a new trial denied;” to which the plaintiff excepts, construing the judgmеnt of the superior court as an affirmance of- the appellate division, but as awarding a final judgment against her by denying a new trial.

1. When questions of fact are involved, the superior court is *340without authority to render a final judgment upon review on certiorari, where such determination is not based solely on and sustained by a controlling question of law; and ‍‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌‌‌​‌​​​​​​​​‌​‌​‌‌​‌‌‌​​​​​‌‍this is true even though "it may clearly appear from the facts disсlosed by the record that the verdict rendered in the lower court was without evidence to suppоrt it.” Smith v. Williamson, 43 Ga. App. 702 (2) (159 S. E. 912), and cases cited; Davis v. Moore, 47 Ga. App. 579 (171 S. E. 166). The superior court would not have erred in affirming or in reversing the decision of the appellatе division granting a new trial on the disputed issues of fact. The award of a new trial would have been proper upon the theory that such an affirmance of the appellate division’s grant of a new trial wоuld be equivalent to the first grant of a new trial by sustaining a certiorari directly from the judgment of the trial court refusing a new trial. Freeman v. Franklin, 47 Ga. App. 265 (170 S. E. 321). But the superior court, in overruling the certiorari, expressly denied a new trial, which in effect amounted to an effort to render final judgment against the plaintiff. Such ruling can not be affirmed, ‍‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌‌‌​‌​​​​​​​​‌​‌​‌‌​‌‌‌​​​​​‌‍unless necessitated under the question of law, as to whether the plaintiff in her own name, or suing for the use of the transferee undertaker, was entitled to recover any benefits under the policy.

2. As a general rule, an action on a contract, whether express or implied, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent. Civil Code (1910), § 5516; Taylor v. Fclder, 7 Ga. App. 219, 221 (66 S. E. 628). An insurance contract is no exception to this rule. Equitable Fire Ins. Co. v. Jefferson Ins. Co., 26 Ga. App. 241, 243 (104 S. E. 818). “A suit on a policy of insurance must be brought ‍‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌‌‌​‌​​​​​​​​‌​‌​‌‌​‌‌‌​​​​​‌‍in the name of the holder of the legal title.” Traders Ins. Co. v. Mann, 118 Ga. 381 (45 S. E. 426). Where a policy contains a provision that any assignment of the policy or its benefits shall be void, and such provision is not wаived by the insurer, or there is no express or iniplied consent to the assignment, such an assignment will not give to the assignee any right of action on the policy. Thomas v. Metropolitan Life Ins. Co., 144 Ga. 367 (87 S. E. 303). "Although a plaintiff having a right of action against anothеr may sue for the use of any person whom he may ‍‌​‌‌​‌​‌​‌‌‌​​​‌​​​‌‌‌​‌​​​​​​​​‌​‌​‌‌​‌‌‌​​​​​‌‍designate to take the proceeds of the action, a plaintiff having no right of action at all can not recover for *341his own benefit or for the use of any one else.” Terrell v. Stevenson, 97 Ga. 570 (25 S. E. 352); American Surety Co. v.County of Bibb, 162 Ga. 388, 391 (134 S. E. 100), and cit.; Norwich Insurance Society v. Wellhouse, 113 Ga. 970 (2), 974 (39 S. E. 397); Wright v. Continental Ins. Co., 117 Ga. 499 (43 S. E. 700); State v. Bank of Whitman, 117 Ga. 849 (45 S. E. 236).

3. Under the terms of the pоlicy sued on, the plaintiff, not having executed an assignment effective against the insurer, retained the right tо sue in her own name, and the alleged assignee had no right of action. The defendant, by introducing in evidence the alleged assignment, having brought about the ruling which required the plaintiff to amend by suing for the use- of the assignеe, can not complain of any error thus invoked or caused, which, moreover, was not prejudiсial to any right of the defendant. It did not except to the allowance of the amendment, but its objeсtions are limited to the special ground in its motion for new trial, that the plaintiff, having “made a legal assignment of her right of action,” had “no right or authority to bring this suit in her name or for the use of the transferee.” The allowance of the amendment as to the form in which the plaintiff sued could not be questioned by a motion for new trial. The plaintiff’s recovery, therefore, was not precluded. Accordingly, under this special ground, it was error for the superior court to overrule the certiorari to the judgment granting a new trial, and at the same time deny a new trial. The effect of the order being ambiguous and contradictory, in view of thе court’s inability to render a legal final judgment' the ruling as a whole must be reversed, and the case remanded for a- determination as to whether a new trial should or should not be granted under the conflicting testimony offered on the trial.

Judgment reversed.

Stephens and Sutton, JJ., concur.