Towns v. Mathews
| Decision Date | 17 April 1893 |
| Citation | 17 S.E. 955,91 Ga. 546 |
| Parties | TOWNS et al. v. MATHEWS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where one of the coplaintiffs was described in the declaration as "James M. Smith," an amendment striking out that name and inserting "Florida Smith" was not objectionable on the ground that it did not allege "that James M. Smith, at his death, did not owe any debts."
2. If the purpose of the amendment was to make Mrs. Smith a party plaintiff in lieu of her deceased husband, James M. Smith because, as his widow and sole heir, she had the right to sue for and recover his estate, and was consequently entitled, as his legal representative, to be made a party in his stead the declaration should not, as to parties, have been amended at all, but she should have been made a party to the case by an order of court reciting the death of the husband pending the action; that she was his widow and sole heir; and that he owed no debts, or that they had been paid.
3. The evidence did not support the declaration as amended, because it failed to show any title in Mrs. Smith at the commencement of the action; indeed, it showed no title in her at any time for it failed to disclose that she was the widow of James M. Smith, or that he was dead. As title was not shown in all of the joint plaintiffs, none of them could recover.
4. A homestead set apart in 1873 by the head of a family for the benefit of his wife and a minor granddaughter terminated on the arrival at majority of the granddaughter, the family having been previously dissolved by the death of both the other members. The condition of the granddaughter as a dependent female would not extend the duration of the homestead, the person on whom she was dependent being no longer in life.
5. A deed conveying the homestead property to a third person, made by the husband and wife, without an order of court, while the homestead estate was in existence, though void as to the homestead right or any subsisting interest of any person therein, is, after the termination of the homestead, valid as to a former beneficiary, whose interest has expired, and who claims as a beneficiary only.
Error from superior court, Talbot county; A. L. Miller, Judge.
Action by J. M. Mathews and others against Emma Towns and another to recover land. Plaintiffs had judgment, and defendants bring error. Reversed.
Marion Bethune and J. H. Worrill, for plaintiffs in error.
J. M. Mathews and C.J. Thornton, for defendants in error.
1. An action for the recovery of land was brought by J. M. Mathews and Smith & Little, a partnership composed of James M. Smith and W. A. Little, against Emma Towns and another. The bill of exceptions states that the declaration was amended "by making Florida W. Smith, wife of James M. Smith, deceased, and his sole heir, party plaintiff." The amendment itself, which was specified as material, and is in the record, recites that the declaration is amended "by striking from said declaration the name of James M. Smith wherever it occurs, and inserting the name of Florida Smith in its stead." This amendment was objected to on the ground that it did not allege "that James M. Smith, at his death, did not owe any debts." It does not appear that at the trial the fact that Mrs. Smith was the widow and sole heir of James M. Smith was disclosed or in any manner made known to the court. It may be perfectly true that such was the fact, but there is nothing to show that the court acted with knowledge of its existence. But for the statement in the bill of exceptions, the amendment would be inexplicable, and the objection to it utterly obscure, and entirely foreign to the matter in hand. Whatever valid reason might have been urged against the amendment as offered, it is quite certain that the one made presented at the time no ground either for disallowing the amendment or for doing or not doing anything else. The objection to the amendment recited that James M. Smith had died, but did not disclose the relationship existing between himself and Florida W. Smith, and these things are not elsewhere shown, except as above stated. Consequently neither the fact that James M. Smith had died nor his financial condition at the time of his death had, so far as matters appeared at the trial, any apparent connection with the question as to whether or not the amendment offered was allowable.
2. We gathered from the argument that the real purpose of the amendment was to substitute Mrs. Smith as a party plaintiff in place of her deceased husband, upon the idea that this could be done without administration on his estate, on the ground that she, as his widow and sole heir at law, had the right to sue for and recover his...
To continue reading
Request your trial
-
Stone v. Edwards
...whole estate under such circumstances without administration." See, also, Owens v. Oliver, 148 Ga. 675 (1), 97 S.E. 856; Towns v. Mathews, 91 Ga. 546 (2), 17 S.E. 955. dissolution of a corporation its property, both real and personal, belongs to the stockholders as tenants or owners in comm......
-
Demmons v. Booker
...in a suit against her by one claiming to be a creditor, so as to render him an incompetent witness. The decision in Towns v. Mathews, 91 Ga. 546, 17 5. E. 955, rests largely on the insufficiency of the objection made to an amendment offered. But it was said that if a man died, and his widow......
-
Jones v. Mccrart
...been held to be members of the applicant's family within the meaning of the homestead laws. Hall v. Matthews, 68 Ga. 490; Towns v. Mathews, 91 Ga. 546, 17 S. E. 955. In direct conflict with these cases is the ruling in the case of Dendy v. Gamble, 64 Ga. 528, where it was held that, to cons......
-
Bigham v. Kistler
...fail as to all. De Vaughn v. McLeroy, 82 Ga. 713, 10 S. E. 211 (6); McGlamory v. McCormick, 99 Ga. 148, 24 S. E. 941; Towns v. Mathews, 91 Ga. 548, 17 S. E. 955 (3); Wooding v. Blanton, 112 Ga. 509, 512, 37 S. E. 720. But even in cases of this character, where equitable defenses are interpo......