Ferris v. Union Savings Bank

I-Iooper, J.

1. “It is not proper for a demurrer to allege facts which are not set forth in the petition which it seeks to attack; it thereby becomes speaking in character, and should be overruled.” Warren v. Bearden, 16 Ga. App. 145 (84 S. E. 597), and cit. In the instant case counsel for the plaintiff in error admits in his brief that the demurrer to the petition was “in the nature of a speaking demurrer.” It follows that the demurrer was properly overruled.

2. The State superintendent of banks may, “in the name of the bank,” institute an action upon any cause of action which is vested by law in such bank. Ga. L. 1922, p. 65; Michie’s Code, § 2366(52). The petition in this case, brought in the name of Union Savings Bank as party plaintiff, to recover upon a note payable to that bank was properly amended so as to proceed in the name of “The Union Savings Bank, a banking corporation of said State and county, by and through W. J. Davis as superintendent of banks for the State of Georgia in charge of the liquidation of said Union Savings Bank.” Such amendment did not make a new party plaintiff. Anderson v. Bennett, 160 Ga. 517 (128 S. E. 660). The trial judge therefore, did not err in allowing said amendment over objection of the defendant.

Judgment affirmed.

Broyles, O. J., amd Luke, J., concur. Thomas L. Hill, for plaintiff in error. Rodney 8. Cohen, contra.