Western & Atlantic Railroad v. Harris

57 S.E. 722, 128 Ga. 394, 1907 Ga. LEXIS 114

• Court: Supreme Court of Georgia
• Decided: May 17, 1907
• Status: Published

Opinion

Atkinson, J.

1. The right to institute an action for the homicide of a-father is, under the Civil Code, §3828, where there is no widow, vested, in the minor children of the deceased. An adult child has'no right to . institute such a suit. Mott v. Central Railroad, 70 Ga. 680; Coleman v. Hyer, 113 Ga. 420. Accordingly, when a suit for the homicide of a father was brought by three plaintiffs, alleging themselves to be children of the deceased, and two were adults and one a minor, a demurrer raising the objection that the adults were improperly joined as plaintiffs should have been sustained. Civil Code, §4940. •

2. In a petition in which the plaintiff is alleged to be a named person, a minor, who sues by another named person as his guardian, it is not necessary to allege when the guardian was appointed, or from what court he received his appointment. Such an allegation is sufficient to establish a prima facie right to institute the' suit. Any objection to the competency of the guardian to institute the suit must be raised by a plea in abatement.

3. As against a general demurrer, the petition set forth a cause of action; and it was not subject to any of the grounds of special demurrer, except those raising the question indicated in the first headnotc.

Judgment reversed.

All the Justices concur.