McCord v. McPherson

151 S.E. 53, 40 Ga. App. 614, 1929 Ga. App. LEXIS 668

Opinion

Bloodworth, J.

In the municipal court of Atlanta McPherson sued McCord as principal and Smith as surety on a receiver’s bond. McCord demurred on the ground that no cause of action was set out, and “if any cause of action exists, that this court is without jurisdiction.” This demurrer was overruled, and on appeal to the appellate division of the municipal court this judgment was affirmed. The case then went by certiorari to the superior court, and upon a hearing thereof the judge of the superior court passed an order the effect of which was to overrule the certiorari. The petition does not show that McCord, the principal on the receiver’s bond, has been discharged or that he defaulted as such receiver. Under the facts disclosed by the record and the law applicable thereto, the receiver could not be sued in the municipal court of Atlanta, and the demurrer to the petition should have been sustained and the ease dismissed by the trial court; and, therefore, the judge of the superior court erred in not sustaining the certiorari. See Civil Code (1910), §§ 5483, 5475; Fountain v. Mills, 111 Ga. 122, 124 (36 S. E. 428).

Judgment reversed.

Broyles, G. J., and Luke, J., concur.