Blackwell v. Pennington & Sons

66 Ga. 240

Opinion

Crawford, Justice.

The error complained of in this case is the refusal of the judge below to sanction a petition for certiorari, in which were set forth the illegal rulings of the justice of the peace on the trial of a claim case in his court.

Certain property having been levied upon as belonging 'to one George Culling, a claim was interposed thereto on the oath of J. L. Pennington, who swore that the same belonged to, and was the property of, W. B. R. Pennington, and not that of the defendant. When this claim came on to be tried, counsel for the plaintiff moved to dismiss the same upon the ground that the affidavit did not show in what capacity the affiant made the oath, whether as agent, attorney, or as one otherwise connected in business with ■the alleged owner. ,

The justice overruled the motion, and allowed the affidavit to be amended, so as to insert the following words in the body thereof after the name of J. L. Pennington, “He is a member of the firm of Pennington & Son's,” and further change the original, wherein it reads, “ is the property of W. B. R. Pennington,” to the words “ is the property of W. B. R. Pennington & Sons.”

The justice, then over objection, also allowed the bond .altered so as to correspord with the affidavit.

1. -.Under the law, a party may claim property .levied upon by himself, his agent or attorney; or where there are partners or persons jointly interested, any one of them may make the affidavit and execute the bond, in the name-•of the firm or persons jointly interested, but the character in which these rights are exercised, and this liability ■incurred should conform to the facts.

2. In all suits by partners or any two or more persons where the name of any one who ought to have been joined is omitted, the same may on .motion be inserted instanter. But it is nowhere provided that a suit commenced by one in his individual name, can be changed into another in the name of partnership. If, however, this diffi•culty could be removed, in this case the claim affidavit is the foundation of a legal proceeding, and cannot be am end-bed, as there is no express, provision authorizing the same. Code, §3504; see, also, case of Flournoy & Epping vs. Pitts, •decisions September 9, 1879, not yet reported. We think, therefore, that the rulings of the justice were illegal, and that the certiorari should have been sanctioned.

Judgment reversed.