(Orig. Code 1863, § 3182; Code 1868, § 3193; Code 1873, § 3258; Code 1882, § 3258; Civil Code 1895, § 4940; Civil Code 1910, § 5517; Code 1933, § 3-109; Ga. L. 1993, p. 1080, § 1; Ga. L. 1999, p. 296, § 24.)
Law reviews.- For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 20 (1993).
JUDICIAL DECISIONS
This section requires that civil actions be brought in name of real parties in interest, and does not touch upon the question of who may present an order or pleading to the court on behalf of one of the parties. Dixie-Land Iron & Metal Co. v. Piedmont Iron & Metal Co., 235 Ga. 503, 220 S.E.2d 130 (1975).
In an action for damages to and to enjoin further damage to real property, the real party in interest is the person or persons who own, lease, or have a legal interest in the property. Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769, 294 S.E.2d 495 (1982).
Section 51-1-11 provides exception to this section.
- Former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11), providing that if tort results from violation of a duty, itself the consequence of a contract, right of action was confined to parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract, set forth an exception to former Code 1933, § 3-109, (see now O.C.G.A. § 9-2-21). Black v. Southern Ry., 48 Ga. App. 445, 173 S.E. 199 (1934).
Former Civil Code 1910, § 5517 (see now O.C.G.A. § 9-2-21) governed right of action under former Code 1933, § 105-108 (see now O.C.G.A. § 51-2-2) for torts by servant. Burch v. King, 14 Ga. App. 153, 80 S.E. 664 (1914).
Conditional vendor has right of action for damages to automobile. Louisville & N.R.R. v. Dickson, 158 Ga. 303, 123 S.E. 12 (1924); Ryals v. Seaboard Air-Line Ry., 32 Ga. App. 453, 123 S.E. 733 (1924).
Minor may maintain action for damages on account of any tort resulting in damages to the minor, whether or not the tortious act affects the minor's parent. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935).
Action should be brought in minor's name.
- As minor plaintiff in action for injuries caused by tortious conduct of defendant is real party in interest and next friend is merely an officer of the court who is to protect the rights of the minor, the action should properly be brought in the name of the minor, by the minor's next friend, but if the action is brought in the name of the next friend, the difference is of little consequence. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935).
Action to recover property set apart to minor children which has been taken and converted by other persons should be brought in the name of such children, regardless of whether they sue by guardian or next friend or without representation. Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143 (1942).
Mentally incompetent plaintiff.
- In an action for injuries by a mentally incompetent plaintiff, the statute of limitations did not continue indefinitely and started to run upon entry into the case of the plaintiff's mother's next friend. Price v. Department of Transp., 214 Ga. App. 85, 446 S.E.2d 749 (1994).
This section permits tenant in common to bring action of trover. Jordan v. Thornton, 7 Ga. 517 (1849); Howard v. Snelling & Snelling, 28 Ga. 469 (1859).
Action by highway department for destruction of bridge.
- The State Highway Department (now Department of Transportation), holding bridge in trust for public as part of system of roads under its jurisdiction could be considered a bailee, and was entitled to bring the action for the allegedly negligent destruction of the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946).
To maintain action for the use of another, there must be a legal right of action in the party bringing the action. King v. Prince, 89 Ga. App. 588, 80 S.E.2d 222 (1954).
If automobile owner has been fully compensated for damage to the owner's automobile by payment by insurer of damages less deductible amount and by payment by other party to the collision of the deductible amount, the owner has no cause of action against the other party and may not maintain suit in the owner's name. King v. Prince, 89 Ga. App. 588, 80 S.E.2d 222 (1954).
Insurance company cannot maintain action for destruction of property covered in part by its policy in the absence of an assignment. Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522, 116 S.E. 35 (1923).
Subsequent vendees having no legal or equitable interest in property at time alleged negligent act occurred are not parties to tort action. Barber v. Adams, 145 Ga. App. 627, 244 S.E.2d 149 (1978).
Limited rights of subsequent owners.
- Purchaser who paid seller's draft for price of cotton after it was burned in carrier's possession cannot sue the carrier. Delgado Mills v. Georgia R.R. & Banking Co., 144 Ga. 175, 86 S.E. 550 (1915); Pee Dee Mfg. Co. v. Georgia R.R. & Banking Co., 144 Ga. 176, 86 S.E. 551 (1915).
Complaint for damage to realty brought by owner against tenant was properly nonsuited (dismissed) since the plaintiff was neither the owner of the property nor the landlord during most of the period when the damages were inflicted and there was no evidence from which the jury might reasonably infer that any ascertainable part of the damage was inflicted after plaintiff became the landlord and partial owner. Martin v. Medlin, 83 Ga. App. 589, 64 S.E.2d 73 (1951).
Owner was not entitled to recover mesne profits for period prior to time the owner acquired title. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).
Trover by one who had parted with title.
- When the plaintiff parted with title to property prior to bringing trover action, nonsuit (involuntary dismissal) was proper. Dunlap-Huckabee Auto Co. v. Central Ga. Automotive Co., 31 Ga. App. 617, 122 S.E. 69, cert. denied, 31 Ga. App. 811, 122 S.E. 260 (1924).
Tortious agent and corporation for whom agent was acting when tort was committed could be sued in same action jointly. Coffer v. Bradshaw, 46 Ga. App. 143, 167 S.E. 119 (1932).
Tort action against wife and husband, her agent.
- When husband, as agent of wife, took out a dispossessory warrant to evict a tenant, tenant may join both in subsequent tort action connected therewith. Smith v. Eubanks & Hill, 72 Ga. 280 (1884).
On proof of conspiracy, all the conspirators are liable for the damage done. Woodruff v. Hughes, 2 Ga. App. 361, 58 S.E. 551 (1907).
Parties in trover action cannot be substituted by amendment. Willis v. Burch, 116 Ga. 374, 42 S.E. 718 (1902).
Action improperly brought against county commissioners cannot be amended by making the county a party or by changing action into one against commissioners as individuals. Arnett v. Board of Comm'rs, 75 Ga. 782 (1885).
Venue of trover action against joint defendants.
- Trover action alleging that named defendants have possession of described articles of personal property to which plaintiff claims title which they refuse to deliver to plaintiff charges defendants jointly with tortious act of conversion, and hence they may be sued together in county where any of them resides. Screven Oil Mill v. Crosby, 94 Ga. App. 238, 94 S.E.2d 146 (1956).
Tort action failed for lack of ownership interest.
- State court, as a matter of law, properly entered summary judgment for amusement park owner for lack of an ownership interest in the property at the time of the alleged sexual molestation of a minor on the roller coaster as, under O.C.G.A. § 9-2-21(b), an action in tort had to be brought against the party committing the injury, either personally, by the party's servant, or an agent in the party's employ. Rice v. Six Flags Over Ga., LLC, 257 Ga. App. 864, 572 S.E.2d 322 (2002).
Party without involvement in business not proper party.
- In a personal injury case in which a hotel moved for summary judgment, it was not a proper party under O.C.G.A. § 9-2-21(b). The hotel demonstrated that the hotel did not own, manage, or otherwise have any participation or involvement with the hotel in question. Vidal v. Otis Elevator Co., F. Supp. 2d (N.D. Ga. Apr. 20, 2012).
Cited in Mason v. Hamby & Toomer, 6 Ga. App. 131, 64 S.E. 569 (1909); Louisville & N.R.R. v. Ramsay, 137 Ga. 573, 73 S.E. 847, 1913B Ann. Cas. 108 (1912); Southern Ry. v. Barrett, Denton & Lynn Co., 141 Ga. 584, 81 S.E. 863 (1914); Sullivan v. Curling, 149 Ga. 96, 99 S.E. 533, 5 A.L.R. 124 (1919); Gulf States Lumber Co. v. Citizens' First Nat'l Bank, 30 Ga. App. 709, 119 S.E. 426 (1923); Webb v. Carpenter, 168 Ga. 398, 148 S.E. 80 (1929); Feeney v. Decatur Developing Co., 47 Ga. App. 353, 170 S.E. 518 (1933); Bowman v. Chapman, 179 Ga. 49, 175 S.E. 241 (1934); Maynard v. Pratt, 181 Ga. 74, 181 S.E. 579 (1935); Dale Elec. Co. v. Thurston, 82 Ga. App. 516, 61 S.E.2d 584 (1950); Russell v. City of Rome, 98 Ga. App. 653, 106 S.E.2d 339 (1958); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980); Buchanan v. Georgia Boy Pest Control Co., 161 Ga. App. 301, 287 S.E.2d 752 (1982); Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 299 S.E.2d 76 (1983); Gwinnett Hosp. Sys. v. Massey, 220 Ga. App. 334, 469 S.E.2d 729 (1996).
RESEARCH REFERENCES
Am. Jur. 2d.
- 59 Am. Jur. 2d, Parties, §§ 33, 157 et seq.
C.J.S.- 67A C.J.S., Parties, §§ 9 et seq., 52, 58, 65, 66.
ALR.
- Right of husband and wife to maintain joint action for wrongs directly affecting both arising from same act, 25 A.L.R. 743.
Jurisdiction of action at law for damages for tort concerning real property in another state or country, 42 A.L.R. 196; 30 A.L.R.2d 1219.
Liability of employer forbidding employees to trade or associate with another, 52 A.L.R. 1028.
Actions at law between partners and partnerships, 58 A.L.R. 621; 168 A.L.R. 1088.
Right under or in view of statute to join in tort action at law parties who are severally but not jointly liable to plaintiff, 94 A.L.R. 539.
Suits and remedies against alien enemies, 152 A.L.R. 1451; 153 A.L.R. 1419; 155 A.L.R. 1451; 156 A.L.R. 1448; 157 A.L.R. 1449.
Breach of assumed duty to inspect property as ground of liability for damage or injury to third person, 6 A.L.R.2d 284.
Conflict of laws as to right of injured person to maintain direct action against tort-feasor's automobile liability insurer, 16 A.L.R.2d 881.
What rights of action in tort in favor of a bankrupt vest in his trustee in bankruptcy under § 70(a) of the former Bankruptcy Act (11 U.S.C. § 110(a)), 66 A.L.R.2d 1217.
Liability of real estate broker for interference with contract between vendor and another real estate broker, 34 A.L.R.3d 720.
Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 35 A.L.R.3d 504.
Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.
Right in absence of express statutory authorization, of one convicted of crime and imprisoned or paroled, to prosecute civil action, 74 A.L.R.3d 680.
Statute of limitations: running of statute of limitations on products liability claim against manufacturer as affected by plaintiff's lack of knowledge of defect allegedly causing personal injury or disease, 91 A.L.R.3d 991.
Breach of assumed duty to inspect property as ground for liability to third party, 13 A.L.R.5th 289.