Eve v. Cross

• Decision Date: 30 March 1886
• Citation: 76 Ga. 693
• Parties: EVE et al. v. CROSS, administrator.
• Court: Georgia Supreme Court

76 Ga. 693

EVE et al. v. CROSS, administrator.

Supreme Court of Georgia.

March 30, 1886

March Term, 1886.

1. Semble that an action could be brought by a wife to recover for herself and minor children property which had been set apart to her husband as a homestead, although he was in life at the time of the commencement of the action and at the time of the trial.

( a. ) If the abstract of title was not sufficiently full in not showing to whom the homestead was set apart, it would have been made clear by the introduction of the record and there was no material variance between the proof and the pleadings.

2. If the husband should have been joined as a plaintiff, he could have been made a party plaintiff by amendment. This would not be adding a new and distinct party or a new and distinct cause of action.

Parties. Homestead. Amendment. Before Judge CARSWELL. Emanuel Superior Court. November Term, 1885.

Reported in the decision.

JOSIAH HOLLAND; BLACK, DELL & WADE, by HARRISON & PEEPLES for plaintiff in error.

JAMES K. HINES, for defendant.

HALL Justice.

This was a statutory action brought by the wife to recover for herself and minor children the premises which had been set apart as a homestead to her husband, who was in life at the commencement of the suit and at the trial, for the benefit of his family. On motion of defendant's counsel, the court ordered the case to be dismissed, on the ground that the suit should have been brought in the name of the husband as the head of the family to whom the homestead was assigned, and not in the name of the wife, who sues for herself and as next friend of the minor children. Before this order was passed the plaintiff moved to amend by making the husband a party to the suit, as next friend for herself and her children. This amendment was refused.

It is now contended that the suit, as originally brought, was maintainable; but if it was not, it was amendable, and should have been amended in accordance with the plaintiff's motion.

1. We are inclined to think that, inasmuch as the wife and minor children were the beneficiaries of this homestead and entitled to its possession and income, they might have maintained this action in their own names without joining the father and head of the family as a party plaintiff. They certainly had the right of possession, and the defendant was presumably a mere wrong-doer; at least, in the absence of evidence to the contrary, it could not be assumed that he was the rightful possessor; this was the issue made by the pleadings, and should have been found by the jury. The abstract of title attached to the writ was, perhaps, not so full and specific as it should have been, inasmuch as it did not show to whom the homestead was set apart, but the production of the record, to which it unmistakably...