Mitchell v. Turner

180 S.E. 131, 180 Ga. 591, 1935 Ga. LEXIS 495

• Court: Supreme Court of Georgia
• Decided: May 16, 1935
• Docket: Nos. 10601, 10602
• Status: Published

Opinion

Beck, Presiding Justice.

1. The petition in this case set forth a legal and equitable cause of action, and the court did not err in overruling the general demurrers.

2. But under the facts alleged the plaintiff was not entitled to a judgment for the sums of money set out in the petition against Mrs. Ella Mitchell, and the ground of her demurrer raising this contention should have been sustained.

3. The court erred also in overruling that ground of the demurrer raising the contention that there was a nonjoinder of a necessary party. The personal representative of the alleged deceased and defrauding administrator is a necessary party defendant to this suit; for if the judgment prayed against Mitchell, the security on the bond of the deceased administrator, should be secured, he rvould have a remedy over, upon payment of that judgment, against the estate of the deceased administrator; and that is a sufficient reason for holding that the court erred in overruling the ground of the demurrer last referred to.

Judgments reversed.

All the Justices concur. Brackett & Brennan, for plaintiff in error. H. W. McLarty, contra.