Kohn v. Colonial Hill Co, (No. 18517.)

• Decision Date: 15 June 1928
• Docket Number: (No. 18517.)
• Citation: 38 Ga.App. 286,144 S.E. 33
• Parties: KOHN et al. v. COLONIAL HILL CO.
• Court: Georgia Court of Appeals

38 Ga.App. 286

144 S.E. 33

KOHN et al.

v.COLONIAL HILL CO.

(No. 18517.)

Court of Appeals of Georgia,

Division No. 2.

June 15, 1928.

Rehearing Denied July 13, 1928.

(Syllabus by Editorial Staff.)

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Action by the Colonial Hill Company against G. M. Kohn and others. Judgment for plaintiff, and defendants bring error. Reversed.

Underwood, Haas & Gambrell, of Atlanta, for plaintiffs in error.

Geo. B. Rush, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1, 2] 1. As a general rule, an action on a contract must be brought in the name of the party in whom the legal interest in the contract is vested. Civil Code 1910, § 5516; Benson v. Abbott, 95 Ga. 69 (1), 22 S. E. 127; Anthony v. Callaway, 37 Ga. App. 523, 140 S. E. 793; Edwards v. Camp, 29 Ga. App. 556 (2), 116 S. E. 210; Hobbs v. Citizens' Bank, 32 Ga. App. 522, 124 S. E. 72. Accordingly, an action cannot be maintained upon a promissory note payable to the order of a named person, which has not been indorsed or otherwise transferred, except in the name of the person to whom it is payable. In the instant case the petition as brought was subject to general demurrer for this reason, and the court erred in not sustaining the demurrer. Allen v. Commercial Credit Co., 155 Ga. 545, 117 S. E. 650; Id., 30 Ga. App. 377, 118 S. E. 499. See Civil Code 1910, § 5689; Wheeler v. Stapleton, 99 Ga. 731, 27 S. E. 724.

2. The court did not err in striking the plea of res judicata on demurrer. While it is the general rule that the dismissal on demurrer of a previous petition based upon the same alleged cause of action bars a subsequent action, if in sustaining the demurrer the court necessarily decided upon the merits of the case (Pain v. Hughes, 108 Ga. 537, 33 S. E. 1012), the rule is different where the effect of the previous adjudication goes merely to indicate that the cause of action sought to be pleaded was defectively set forth. In the instant case the plea of former adjudication was bad, in that it not only failed to indicate that the court, in passing upon the previous demurrer, necessarily must have decided the merits of that cause (Callaway v. Irvin, 123 Ga. 344 (4), 51 S. E. 477; Macon & Birmingham Ry. Co. v. Walton, 127 Ga. 294, 56 S. E. 419), but, on the contrary, the pleadings embodied in the plea of res judicata themselves indicate nothing more than a previous adjudication to the effect that the cause of action was...