Wilkins v. The Wardens

• Decision Date: 31 July 1874
• Parties: C. D. S. Wilkins, for use, etc., plaintiff in error. v. The Wardens and Vestry of St. Mark's Protestant Episcopal Church of Dalton, defendant in error.
• Court: Georgia Supreme Court

52 Ga. 352

C. D. S. Wilkins, for use, etc., plaintiff in error. v. The Wardens and Vestry of St. Mark's Protestant Episcopal Church of Dalton, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

*Contracts. Corporations. Pleadings. Joint promissors. Before Judge McCutchen. Whitfield Superior Court. April Term, 1874.

Suit was brought against the defendant in a justice court. The case was carried by appeal to the superior court. The jury found for the plaintiff. The defendant moved for a new trial, among other grounds, because the court erred in charging the jury as follows: "It is immaterial whether St. Mark's Episcopal Church is a corporation or not. If it is a society of persons who have associated themselves together for a purpose, and constituted certain agents, called by the name of wardens and vestrymen, or by any other name, then this church can be sued, and its representatives, the wardens and vestrymen, can be sued."

The motion was sustained, and a new trial ordered; whereupon, the plaintiff excepted.

Jesse A. Glenn, for plaintiff in error.

Shumate & Williamson, for defendants.

McCAY, Judge.

It is not pretended that the members of this society, at thedate of the commencement of the suit, are the persons, all of them, who were members at the time of the contract. The whole scope of the proof and the form of the suit is against the society as such—the society changing in parts as its members changed, by death, removal and accession. In other words, the suit is upon the idea that the society is an entity—that as it has succession, by change in membership, that it remains the same, however its members change. The suit does not even go against the parties as joint contractors, but against the society, as such, by its name, represented by its officers. Now the right to have succession—to remain the same though the parts and members change—to be and continue a thing, an entity, whatever may be the change in membership, *and to sue and be sued—make up the idea of a corporation, which our Code defines to be "an artificial person created by law for specific purposes." We are clear that this action, so far as it is a suit against the society, as such, cannot be sustained. Had its members all been served they might be charged as joint promissors, contracting through an agent, or as partners, contracting in a firm name. But this is a suit against the church, as an entity, and the service is upon the officers: See Addison on...