Neal v. Heard

An execution against John C. Neal and in favor of ■George W. Heard was levied on a tract of land, to which Sallie E. Neal interposed a claim. On the trial of the claim in the superior court the fact came to light that the execution was issued on a judgment rendered on September 19, 1893, notwithstanding George W. Heard had died on April 2 of that year. The claimant made a motion to dismiss the levy, on the ground that this judgment was void, having been obtained after the death' of the plaintiff to the action in which it was. rendered. The trial judge overruled this motion, directed a verdict against the claimant, and entered up judgment thereon. On motion of Fannie Heard, who had testified as -a witness, the-court then passed an order reciting, that it had *442appeared from the evidence that George W. Heard, the plaintiff in fi. fa., was dead, that she was the sole owner of the judgment and execution, and that she should accordingly be made a party plaintiff in his stead, so that the case might proceed in her name. The claimant is before this court making complaint of various rulings made pending the trial, and assigning error upon the order allowing Fannie Heard to become a party plaintiff.

The whole proceeding up to the time of verdict and judgment was a nullity, since no issue had been tendered to the claimant by any living person. Ray v. Anderson, 114 Ga. 975. No ruling in favor of the claimant would have been binding on any one not a party to the case, so it is useless to inquire into the merits of the various contentions which she presented to the trial judge. When the fact became known that the plaintiff in fi. fa. was dead, the court should have suspended the trial, as requested by counsel for the claimant, because of the want of a proper party plaintiff. Ray v. Pease, 112 Ga. 676. Only some person who had been duty appointed the legal representative of George W. Heard could property undertake to conduct the litigation in his stead. Ray v. Anderson, 114 Ga. 979. His heir at law, Fannie Heard, was not shown to have any authority to represent his estate, and should not have been made a party plaintiff. Judgment reversed.