Mathis v. Fordham

Lumpkin, P. J. An action was brought in the city court of Dublin by J. M. Fordham, as ordinary, suing for the use of Mary Jane Mathis “ and her three minor children.” The petition is set forth in the official report preceding this opinion. To this petition the defendants filed a demurrer based upon the grounds: “1st. That there is no cause of action set forth in said petition. 2nd. That one of the heirs at law of J. N. Darsey, to wit Laura E. Garrett, was never sued in said action. 3rd. Because there is nothing set forth in said petition to predicate the suit upon, and all of the plaintiffs’ names are not set out in said petition. 4th. The defendants' were not bound at any time to said estate except by bond, and the bond which they gave has not been sued upon.” The demurrer was overruled, and the defendants excepted. They also filed an answer, the substance of which appears in the above-mentioned official report. This answer, or demurrer thereto, was stricken by the court, and thereupon a verdict in favor of the plaintiff for the amount sued for was directed; to all of which exception was taken by the defendants. 1. It was insisted on the argument here that, according to the allegations of the petition, the judgment against A. J. Mathis, the basis of the plaintiff’s action, was against Mathis individually, the same not being a judgment against him in his representative capacity.' It will be noted that this point is not made by special demurrer, and therefore the contention of counsel for the plaintiffs in error must necessarily mean that the petition was not, for the reason assigned, good as against a general demurrer. We can not concur in this view. The plaintiff’s petition alleged that Mrs. Mathis, “for the use of herself and her three minor children, obtained a judgment against the said A. J. Mathis, administrator, as aforesaid;” and further, that this judgment was obtained on a petition brought by her for the use of herself and her children for a settlement with “ the said A. J. Mathis, as administrator on the estate of said James T. Warren, deceased.” 2. The second ground of the demurrer makes the point that Laura E. Garrett, one of the heirs at law of J. N. Darsey, deceased, was not sued. This is a “speaking” demurrer, because it does not appear in the petition that J. N. Darsey had such an heir. The proper method for presenting this point was to file a plea of nonjoinder. 3. The third ground of the demurrer raises the objection that [368] "all the plaintiffs’ names are not set out in said petition.” There is but one plaintiff, viz., Fordham, the ordinary of Laurens county. Mrs. Mathis, by name, and her three minor children, by reference, are simply designated as usees. If the defendants deemed it essential that the petition should set forth the names of these children, the demurrer should have presented the point that the petition failed to disclose the names of these usees. Instead of so doing, complaint was made that the petition was defective in that it did not set forth the names of all the parties plaintiff. Presumably, the defendants regarded the usees as plaintiffs, but they could not properly be so considered in determining the question whether or not the petition was brought in accordance with the established rules of pleading. Had the usees been actually joined with the ordinary as parties plaintiff, the petition would undoubtedly have been demurrable; for the bond sued on was payable to the ordinary, and the usees were strangers to the contract evidenced thereby. Nevertheless, it was in the argument here urged that, in a suit of this kind, the usees are to be regarded as the real plaintiffs. Undoubtedly, for many purposes it would be proper to treat them as the real beneficiaries of the action. For instance, they should be so regarded when so doing would be essential to the assertion of any right or defense on the part of the defendants. But, in a strictly legal sense, usees are not parties to the case, and can not be joined as plaintiffs with the person in whose name the law declares the action must be brought and conducted. In Sharman v. Walker, 68 Ga. 148, which was a suit by a sheriff for the use of named persons, it was held that he was “the party plaintiff” and that those for whose benefit he sued were “properly joined as usees in the action.” Counsel for the plaintiffs in error cited and relied on the case of Wortsman v. Wade, 77 Ga. 651, and the cases cited by Mr. Justice Hall on page 656. In the main case it was simply held that the action there dealt with was removable to the United States court, on the ground that though the United States marshal was the formal party plaintiff, his usees, the real beneficiaries of the action, were non-residents of Georgia. It is true that they were referred to as “the real plaintiffs in the action,” but this merely meant that they should be so considered for the purpose of determining whether or not the suit could properly be removed to the Federal court. No question concerning the sufficiency of the plead [369] ings was in that case raised or passed upon. Of the cases cited in the opinion we have already noticed that of Sharman v. Walker, which, we think, directly supports the ruling we now make. The other cases do not sustain the contention of counsel, for in none of them was the court dealing with the question whether, relatively to the proper practice in framing the pleadings, persons for whose use an action is brought can properly be considered parties plaintiff. In conclusion it is proper to call attention to the fact that the rules governing good pleading apply as well to the framing of a demurrer as to the preparation of a petition which it seeks to attack. It is obvious that in the present case the defendants’ demurrer does not remotely present the point insisted upon in the argument here, viz., that the petition was defective in that the names of all the usees were not set forth therein; and this being so, the demurrer falls far short of coming up to the requisite standard of certainty which the law declares shall be observed by a defendant who seeks to take advantage of the failure of a plaintiff to conform to the requirements of good pleading. 4. The 4th ground of the demurrer is entirely too vague and indefinite to raise any point for our determination. We have studied the language employed, closely and carefully, and candidly are unable to conjecture what objection to the petition was thereby intended to be made. It certainly does not present the point that there was a misjoinder of parties defendant. 5. It is clear that there was no error in striking the defendants’ answer. An examination of it will show that there are no distinct denials of the material allegations of fact set forth in the plaintiff’s petition, nor any statement to the effect that for want of sufficient information the defendants were unable either to admit or deny the same. The denial of the 7th paragraph of the petition amounted to nothing. That paragraph stated a conclusion of law, and presented no allegation which could be met by answer. Any objection to this paragraph should have been raised by demurrer. Civil Code, § 5049. In so far as the answer attempted to set up matters of defense, it will be at once perceived that this was neither more nor less than a naked effort to go behind a judgment without suggesting a single good reason against its validity. There was no error in directing the verdict to which exception is taken. With the answer out of the way, and taking the plain [370] tiff’s allegations as true, this verdict was the necessary result of the trial. Judgment affirmed. All the Justices concurring.