Gordon v. McCauley

Jackson, Chief Justice.

This record makes the question, whether suit having been brought by Thomas M. Gordon originally on a promissory note in his own name, and amended afterwards by inserting the name of a partnership for the use of Thomas M. Gordon, and adding a count for the value of the consideration (to-wit, a sorghum mill), which was non-suited, can be renewed within six months after the non-suit for the value of the sorghum mill ?

• Gordon was the party in interest and only party in interest all the while. First, he seemed to have sued in his own name, claiming legal title ; then in the name of the true legal owners of the debt for his use, in which last character he was non-suited; then in six months he renewed this suit for the consideration of the note (the court has “copy of note” in red ink, but does not set out the copy itself), andit is therefore presumed that the renewed suit also embraced the note. In the case of Moody vs. Threlkeld, 13 Ga., 55, it is held that the cestui que trust, one who has the equitable interest, is the real party, and m.ay renew in six months. See p. 60, opinion of court. In Cox vs. Berry et al., 13 Ga., 306, on page 309, the court repudiate a narrow construction of the act and open its spirit widely. Nor does the case of Moss, administrator, vs. Keesler, in 60 Ga., 44, militate against these. It merely emphasizes that it must be the real party who can renew, which is admitted in the cases in the 13th Ga. We think, therefore, that the plaintiff had a right to renew within -six months.

The amendment, inserting the names of the partners, we do not pass.upon. It is not before us, and we cannot pass upon it.

We decide the naked question that, inasmuch as Gordon sued originally on this note in his own name, and was the real party in the case, in all its changes and amendments, up to the non-suit, he had a right to renew the suit within six months thereafter.

Judgment reversed.