Beck &. Gregg Hardware Co v. Southern Sur. Co
| Decision Date | 19 December 1931 |
| Docket Number | Nos. 21415, 21444.,s. 21415, 21444. |
| Citation | 44 Ga.App. 518,162 S.E. 405 |
| Parties | BECK &. GREGG HARDWARE CO. v. SOUTHERN SURETY CO. SOUTHERN SURETY CO. v. BECK & GREGG HARDWARE CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Jan. 18, 1932.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by the Beck & Gregg Hardware Company against the Southern Surety Company. Judgment for defendant, and plaintiff brings error, and defendant files cross-bill of exceptions.
Affirmed on the main bill of exceptions, and cross-bill of exceptions dismissed.
Sam E. Murrell, K. R. Murrell, and H. E. Edwards, all of Atlanta, for plaintiff in error.
Bryan, Middlebrooks & Carter, of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
It is the general rule as to contracts of all kinds that they are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, unless the contracting parties clearly appear to have had some other law in view. Tillman v. Gibson (Ga. App.) 161 S. E. 630; 12 C. J. 449, § 30. But the character and extent of the remedy, and the mode of procedure, including questions relating to the parties, and question as to the capacity of a party to sue or be sued, and as to who may maintain the action, and in whose name the action shall be brought, are determined by the law of the forum in which the action is instituted. Lay v. N., C. & St. L. Ry. Co., 131 Ga. 346 (3), 62 S. E. 189; Selma R. Co. v. Lacey, 49 Ga. 107 (7); Joice v. Scales, 18 Ga. 725; Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256, 286, 30 S. E. 918, 42 L. R. A. 261; Cox v. Adams, 2 Ga. 158, 161; 49 C. J. p. 17, § 14. Accordingly, where, as in the instant case, suit was brought in Georgia upon a bond executed in the state of Florida in pursuance of a contract of assignment made in Florida, questions as to who may maintain the action brought in this state, and in whose name such action shall be brought, are to be determined in accordance with the laws of Georgia.
2. In this state, "as a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent." Civil Code 1910, § 5516; Kohn v. Colonial Hill Co., 38 Ga. App. 286, 144 S. E. 33; American Surety Co. of New York v. DeWald, 30 Ga. App. 606, 118 S. E. 703. In the instant case the suit as instituted at law, on a bond executed in the state of Florida by the assignees under an assignment for the benefit of creditors in accordance with the laws of that state, which bond was made payable to the Governor of the State of Florida, and conditioned upon the principal obligors "well and truly and faithfully" discharging the duties devolved upon them as such assignees, and which bond contained no recital that it was entered into for the benefit of the creditors of the assignor, was subject to the demurrer interposed upon the ground that the plaintiff creditor could not maintain the action in its own name. The plaintiff having acquiesced in the ruling of the court below holding such ground of demurrer good (McConnell v. Frank E. Block Co., 26 Ga. App. 550 [1], 106 S. E. 617), and having sought to amend the petition to meet such adverse ruling, in accordance with the permission granted in the order of the court, by setting forth a Florida statute which, contrary to the Georgia law, permits suits in any civil action at law to be maintained by the real party ac interest, and the amendment failing, under the principle stated in the first division of the syllabus, to meet the ground of objection urged, the court did not err, upon the renewal of such ground of demurrer, in dismissing the petition. It is unnecessary, in this view of the case, to determine whether the amendment to the petition opened up the case for the renewal of the grounds of the original demurrer which had been overruled in the order sustaining the ground herein referred to with leave to the plaintiff to amend. Whether the plaintiff might have been permitted to amend the suit by inserting the name of the obligee in the bond as suing for the use of the plaintiff, it is unnecessary to determine, since the plaintiff elected to amend by standing on the Florida statute set forth; and since the ruling of this court is that the judgment of the court below in dismissing the petition be affirmed, no direction can be given that a further opportunity to amend be afforded the plaintiff.
Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.
On Motion for Rehearing.
By a motion for rehearing it is insisted that the court in its original opinion in this case overlooked the material facts, as shown by the record, that when the case came on for a hearing in the court below the judge of the superior court overruled all the grounds of the defendant's demurrer, both general and special, except those which raised the question as to the right of the plaintiff to maintain the action, which grounds were held good. It is insisted that this amounted to an adjudication that the petition set forth a cause of action, good as against general demurrer, and that the court was, therefore, not authorized to thereafter dismiss...
To continue reading
Request your trial