Opinion
16155.
APRIL 13, 1948.
Injunction. Before Judge Mundy. Haralson Superior Court. January 19, 1948.
H. J. McBride, for plaintiff in error.
1. "An action can not be maintained in a name as plaintiff which is neither that of a natural person, a partnership, nor of such artificial person as is recognized by the law as capable of suing. A proceeding commenced in such a name, there being no plaintiff, is not an action, but a mere nullity, and may be dismissed at any time on motion." Western Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 (1) ( 50 S.E. 978).
2. Under the law of this State, a county board of education is not a natural person, a partnership, or a body corporate with authority to sue or be sued, in the ordinary sense. Accordingly, "the Board of Education of Haralson County" could not as sole plaintiff maintain the present suit for injunction to restrain the defendant from interfering with the possession and use of property claimed by it. Code, Ch. 32-9; Code (Ann. Supp.), § 2-6501; Mattox v. Board of Ed. of Liberty County, 148 Ga. 577 (2), 580 ( 97 S.E. 532, 5 A.L.R. 568); Board of Ed. of Candler County v. Southern Michigan Nat. Bank, 184 Ga. 641 ( 192 S.E. 382); Board of Ed. of Baker County v. Hall, 29 Ga. 615 ( 7 S.E.2d 183); Board of Ed. for Houston County v. Hunt, 29 Ga. App. 665 ( 116 S.E. 900); Ayers v. Board of Ed. of Hart County, 56 Ga. App. 146 ( 192 S.E. 256). See also, in this connection, Smith v. Commissioners of Roads c. of Glynn County, 198 Ga. 322 ( 31 S.E.2d 648); Ayers v. Hartford Accident Indemnity Co., 106 F.2d 958.
3. The court erred in overruling the general demurrer to the petition. The further proceedings were nugatory.
Judgment reversed. All the Justice concur.
No. 16155. APRIL 13, 1948.
The suit in this case was brought by "the Board of Education of Haralson County" as sole plaintiff. It alleged: that the defendant, R. B. Verner, is illegally interfering with the petitioner's right of ownership and possession of a described tract of land, the defendant having moved his family into the school building located thereon, and is threatening to remove timber from said land; and that the trespass of the defendant interferes with the conduct of the schools of the county, and is irreparable in damages. The prayers were for service, injunction, process, and general relief. The defendant filed a general and special demurrer, which the court overruled, and exceptions pendente lite were taken. The defendant also filed an answer, in which he expressly stated that he did not waive any of his rights under his demurrer to the petition, as previously filed. An interlocutory injunction was granted. On final trial, the jury returned a verdict which was in part adverse to the defendant. His motion for a new trial, as amended, was overruled, and he excepted. In his bill of exceptions, he assigned error also upon his exceptions pendente lite to the order overruling his demurrer. Still other exceptions were taken, and all are insisted upon, but the foregoing is a sufficient statement of the case, in view of the rulings made in reference to the demurrer.