Campbell& v. Western & Atl. R. R

• Court: Georgia Court of Appeals
• Writing for the Court: GUERRY
• Citation: Campbell& v. Western & Atl. R. R, 194 S.E. 927, 57 Ga.App. 209 (Ga. App. 1938)
• Decision Date: 14 January 1938
• Docket Number: No. 26465.,26465.
• Parties: CAMPBELL。 v. WESTERN & ATLANTIC R. R.

57 Ga.App. 209

194 S.E. 927

CAMPBELL。

v.WESTERN & ATLANTIC R. R.

No. 26465.

Court of Appeals of Georgia, Division No. 1.

Jan. 14, 1938.

Syllabus by Editorial Staff.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Action for death by J. H. Campbell's intestate, wherein, on death of plaintiff during the pendency of the action, J. H. Campbell, as administrator, was made a party plaintiff. To review a judgment dismissing the action, the administrator brings error.

Affirmed.

C. H. Dalton and Hardin & McCamy, all of Dalton, for plaintiff in error.

Walton Whitwell, of Nashville, Tenn., and D. W. Mitchell, of Dalton, for defendant in error.

Syllabus Opinion by the Court.

GUERRY, Judge.

1. Where a wife sues for the homicide of her husband, as provided in the Code, § 105-1302, and during the pendency thereof dies, the action survives in the first instance to the children of the deceased if any be in life. Code, § 105-1303. In such a case, if there be no children, the action survives "to the personal representative of the deceased plaintiff." Code, § 3-505.

2. Upon the death of a wife suing for the homicide of her husband, the suit does not abate but is suspended. However, nothing further can properly be done in the action until the person or persons in whose favor the action survives is brought or voluntarily appears before the court, by proper proceedings. Irwin v. Shuford, 144 Ga. 532 (1), 87 S.E. 674. Where the action survives to the administrator of the deceased plaintiff, it would seem that being charged with the duty of prosecuting pending action of the deceased, he should, voluntarily and on his own motion, appear before the court and be made a party thereto, which should be done by an order of the court and not an amendment of the petition striking the deceased's name therefrom, Towns v. Mathews, 91 Ga. 546(2), 17 S.E. 955, and in default of doing so within a reasonable time the case may be dismissed for want of prosecution, Anderson v. Cary, 89 Ga. 258, 15 S.E. 309. However, in a case of this character, the administrator of the deceased plaintiff is not the proper party to proceed with the suit unless it be shown that there are no living children of the deceased, see Code, § 3-505; Dellinger v. Elm City Cotton Mills, 26 Ga.App. 780, 107 S.E. 264; Butts v. Moultrie, 39 Ga.App. 685(1), 148 S.E. 278; Western & Atlantic R. R. v. Allgood, 41 Ga.App. 484(2), 153 S.E. 442; Lamb v. Tucker, 146 Ga. 216 (2), 91 S.E. 66; Clements v. Pollard, 53 Ga.App. 544, 186 S.E. 587, and where the administrator of the deceased plaintiff appeared and was made a party and the defendant subsequently made a motion to dismiss the suit because the administrator had not shown that there were no children of the deceased to whom the action would survive, and where upon the hearing of this motion it appeared that there...