Saint Mark's Methodist Episcopal Church v. Georgia Power Co. , 19 Ga. App. 633 ( 1917 )

George, J.

1. Suit can only be maintained by or in behalf of a natural person or an artificial person. The plaintiff in the present case was neither; and, the action not being a suit by one having capacity to sue, there was nothing in the petition to amend by, and hence the court did not err in refusing to allow the proposed amendment. Mutual Life Insurance Co. v. Inman Park Presbyterian Church, 111 Ga. 677 (36 S. E. 880), and cases there cited; Roberts v. Tift, 136 Ga. 90 (72 S. E. 234).

2. If a suit is brought in a name which is neither that of a natural person, nor of a corporation, nor a partnership, it is a mere nullity. In a suit by a corporation in fact, where the petition fails to so aver, an amendment alleging that the plaintiff is a corporation is proper. W. & A. R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978) ; Collins v. Armour Fertilizer Works, 18 Ga. App. 533 (89 S. E. 1054).

3. The amendment, which the trial court refused to allow, averred that the Saint Mark’s Methodist Episcopal Church “is not a corporation, and has never in any way been authorized to sue in its own name; ’’ from which it necessarily follows that the suit was a nullity, under the authorities cited above. The provision contained in § 5689 of the Civil Code of 1910, as follows: “and when it becomes necessary for the purpose of enforcing the rights of such plaintiff, he may amend by substituting the name of another person in his stead, suing for his use,” does not apply in this case, because the suit as originally brought did not proceed in the name of any person, natural or artificial. If the suit were in the name of an actual plaintiff, the right given in the code section quoted would exist. The court properly dismissed the petition, on demurrer.

Judgment affirmed.

Wade, O. J., and Luke, J,, concur.

Action for damages; from Campbell superior court—Judge Smith. August 9, 1916.

W. A. James, J. S. James, J. F. Golightly, J. R. Bedgood, for plaintiff. King & Spalding, for defendant.