Irvine's Georgia Music House v. Wynn

Cobb, J. A.petition addressed to the county court of Marion •county alleged that “S. J. Wynn as agent for Mrs. Minnie Wynn ” was indebted to the plaintiff on an account which “ S. J. Wynn as agent aforesaid refused to pay.” Process was prayed .against “S. J. Wynn as agent aforesaid.” Process was issued requiring the defendant “ S. J. Winn as agent for Mrs. Minnie Wynn” to appear and answer the petition. The entry of the sheriff was that he had served “the defendant S. J. Wynn personally.” To this petition “S. J. Wynn, agent,” filed an .answer. The county judge rendered a judgment in favor of the plaintiff. In order to carry the case to the superior court :an appeal bond in the usual form was filed, in which it was recited that “the defendant S. J. Wynn, agent for Minnie L. Wynn,” was dissatisfied with the judgment rendered. This bond was signed, “Minnie L. Wynn, by S. J. Wynn, agent.” When the case came on for trial in the superior court, attorneys representing Mrs. Wynn moved to dismiss the case as to her, on the ground that, she was not a party to the same. The court sustained this motion, and her name was stricken from the case. The plaintiff’s counsel thereupon announced that “there was no case against S. J. Wynn individually,” and an •order was entered dismissing the entire case and entering judgment against the plaintiff for costs. To the decision holding that Mrs. Wynn was not a party to the case and striking her name the plaintiff excepted. The suit was an action against S. J. Wynn as an individual, .and the words “as agent for Mrs. Minnie Wynn” were merely •descriptive of the person sued and did not fix the character in which the defendant was sought to be bound by the judgment. McDuffie v. Irvine, 21 Ga. 748; Atlanta Brewing Co. v. Bluthenthal, 101 Ga. 541. Mrs. Wynn was no party to the case. No process was prayed against her. She did not appear and answer; and the mere fact that her name appeared signed to the appeal bond by the defendant as her agent did not make her in any [404] sense a party to the case. While it may not have been necessary, it was, not at all improper for her to appear ¡and move that her name be stricken from the record. Although a judgment entered in the case against the defendant as agent for Mrs. Wynn would not bind her in any way, the fact that it was so entered might lead to an attempted enforcement of it against her property, and it was therefore not improper for her to appear and have her name stricken from the record and thus; avert any possible annoyance from the judgment in the future.. When her name was stricken from the record, upon the announcement of plaintiff’s counsel that he did not claim that, he had any case against Wynn, there was no error in dismissing the entire proceeding. Judgment affirmed. All the Justices concurring.