McCord v. McPherson

Court of Appeals of Georgia

McCord v. McPherson

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

CourtCourt of Appeals of Georgia

DecidedDecember 10, 1929

Docket19924

StatusPublished

This text of 151 S.E. 53 (McCord v. McPherson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCord v. McPherson, 151 S.E. 53, 40 Ga. App. 614, 1929 Ga. App. LEXIS 668 (Ga. Ct. App. 1929).

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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.

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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.

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Bluebook (online)

151 S.E. 53, 40 Ga. App. 614, 1929 Ga. App. LEXIS 668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccord-v-mcpherson-gactapp-1929.

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