King v. King , 228 Ga. 818 ( 1972 )

Almand, Chief Justice.

Gary D. and Kelvin F. King, minors, through their next friend brought a complaint against Florine King in which it was alleged that on September 27, 1968, one Floyd King conveyed to Florine King, as trustee for the plaintiffs, a described tract of land. Under this trust deed it was the duty of the trustee to manage the property for the use and benefit of the plaintiffs. One of the allegations of the complaint was that the trustee had moved her residence to another state.

One of the prayers of the complaint was that the defendant be removed as trustee.

When the case came on for a trial before the court and a jury and it appeared without dispute that the defendant trustee had moved her residence to another state, the court, on motion, directed a verdict in favor of the plaintiffs. On this verdict the court entered its judgment removing the defendant as trustee.

The defendant’s motion for a new trial being overruled, notice of appeal was filed.

Error is enumerated on the court’s overruling the motion of the defendant to dismiss the complaint, in that Floyd King, Jr., the grantor of the trust deed was not made a party to the proceeding.

In Smith v. Merchants & Farmers Bank, 226 Ga. 715 (3) (177 SE2d 249), this court, in applying Sections 12 and 21 of the 1966 Civil Practice Act (Code Ann. §§ 81A-112, 81A-121) as to the failure to join an essential party said: "Where the question of an indispensable party is exprqssly passed upon by the trial court it will be held that the plaintiff had the necessary opportunity to seek the addition of such party, but in the absence of any disclosure by the record of an intent to raise or pass upon such question in the trial court, such defect will be deemed an amendable defect.”

No motion was made to make Floyd King, Jr., a party. It was not error to overrule the motion to dismiss.

Code Ann. § 108-315, as amended by Ga. L. 1959, p. 324; 1964, p. 270, provides that where the sole trustee of any trust estate has removed beyond the jurisdiction of the courts of Georgia, the superior court shall have full power and authority, upon the petition of two or more of the parties interested in such trust, to appoint a new trustee or trustees.

It appearing without dispute that the trustee had moved her residence to the State of New York, the court did not err in directing a verdict removing her as trustee and entering its judgment on the verdict.

Judgment affirmed.

All the Justices concur, except Gunter, J., who dissents.