165 Ga. 283 | Ga. | 1927
On October 26, 1926, a rule nisi was issued upon the application of the defendant, calling upon the United States Fidelity & Guaranty Company to show cause, on November .8, 1926, why it should not be made a party to the case of W. Henry Lloyd v. E. J. Tucker Jr., as executor of Richard Gray, deceased, in which case other parties had intervened as plaintiffs.
Lloyd filed his petition in equity against Tucker as executor of Gray, in which he sought injunctive relief and a decree requiring the executor to turn over to him, as the .sole heir of testator, the lands which the executor was advertising for sale under an order of the court of ordinary granting leave to sell them for the purpose of paying debts and expenses of administration; the contention of the petitioner being that there was no necessity for the sale of these lands for these purposes. The court granted an interlocutory injunction, but afterwards dissolved it; and these lands were sold. By agreement of the parties the trial judge passed an
An eventual condemnation-money bond- is one wherein the makers agr.ee to pay to the payee therein any judgment which he may recover against the principal in the suit in which such bond is given. Lockwood v. Saffold, 1 Ga. 72; Planters’ &c. Bank v. Hudgins, 84 Ga. 108 (10 S. E. 501). The bond given by petitioner to the executor is not one for the payment of a judgment •for the eventual condemnation-money which the payee may ob
When there is no cause of action at the commencement of suit, there can be no recovery, although one accrue, respecting the same subject-matter, while the suit is pending. Wadley v. Jones, 55 Ga. 329; Gentry v. Walker, 101 Ga. 123 (28 S. E. 607); Deas v. Sammons, 126 Ga. 431 (55 S. E. 170, 7 Ann. Cas. 1124); Elmore v. Thaggard, 130 Ga. 701, 705 (61 S. E. 726). At the time the executor amended his answer, and sought to make the surety company a party to this cause, no right of action existed in his favor against the company.
Applying the above principles, the court erred in passing an order making the surety company a party to this cause.
Judgment reversed.