Connell v. Murray

423 S.E.2d 304, 205 Ga. App. 702, 92 Fulton County D. Rep. 2299, 1992 Ga. App. LEXIS 1302

• Court: Court of Appeals of Georgia
• Decided: October 5, 1992
• Docket: A92A1077
• Status: Published

Opinion

Johnson, Judge.

Lenny Connell died testate on September 18, 1990. Melvin Murray was appointed temporary administrator of Connell’s estate on March 1, 1991. On that same date, Murray filed a personal injury lawsuit against himself as temporary administrator of the estate. Thereafter, Mary Connell, the decedent’s mother, qualified as executor of the estate and the temporary letters of administration issued to Murray were revoked. Attorneys for the estate filed a motion to dismiss Murray’s complaint on the ground that Murray could not be both plaintiff and defendant in the same action. Murray then filed a motion to substitute Mary Connell as the defendant in his action. The trial court entered an order denying the motion to dismiss and granting Murray’s motion to substitute. Mary Connell appeals from that order.

Decided October 5, 1992. Simpson & Gray, Ralph F. Simpson, Elizabeth B. Gibbs, for appellant. Moore & Studstill, Mitchell 0. Moore, William S. Perry, O’Neal, Brown & Sizemore, Manley F. Brown, for appellee.

A person cannot sue himself; the same person cannot be both plaintiff and defendant in the same action, even in different capacities. Perdue v. McKenzie, 194 Ga. 356, 364 (2) (21 SE2d 705) (1942); Langford v. Johnson, 46 Ga. App. 444 (3) (167 SE 779) (1933). Murray’s action against himself was therefore void from its inception and the trial court erred in not dismissing it. Because the action was void from its beginning, the trial court had no authority to substitute Mary Connell as the defendant. Accordingly, the trial court also erred in granting Murray’s motion to substitute.

Judgment reversed.

Carley, P. J., and Pope, J., concur.