Voyager Life Insurance v. Estate of Bagley , 165 Ga. App. 212 ( 1983 )

Carley, Judge.

These two cases arose when the executor under the will of Frank G. Bagley, deceased, made claim for payment under two credit life insurance policies issued by appellant-insurer. Appellant denied payment and the instant suits were filed, styled as “Estate of Frank G. Bagley vs. Voyager Life Insurance Company.” Summary judgment was granted in both cases to the appellee-estate, as plaintiff, and appeal was brought to this court by appellant.

“An estate is not a legal entity which can be a party plaintiff to legal proceedings, because the exclusive right to bring actions in behalf of an estate (including attachment and garnishment proceedings) is, with certain exceptions not here applicable, in the legal representative, executor or administrator, of the estate. [Cits.] 2. ‘This court is fully committed to the proposition that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity, either as a natural or an artificial person. In every suit in this state, there must be a real plaintiff... If the suit is brought in a name which is neither that of a natural person, nor a corporation, nor a partnership, it is a mere nullity, and therefore, with no party plaintiff, there is no case in court, and consequently nothing to amend by. ’ [Cits.] This is for the reasons that there must be someone upon whom the judgment of the court will be effective ([cit.]) and that void proceedings are not amendable. [Cit.] 3. Although there might arise an estoppel by judgment in a case where there was in fact a real party plaintiff in court but improperly designated, this rule does not apply where no legal party plaintiff was named in the pleadings and shown to exist [cit.], in which situation the suit is a mere nullity, and thus unenforceable even after judgment. [Cits.] 4. Under these principles of law, there was no legal party plaintiff to prosecute the case below. This being a legal prerequisite which was not, and could not have been, supplied by amendment or waived, the court below was without jurisdiction of the case. Since the lack of jurisdiction appears on the face of the pleadings, we hold, as a matter of law and without any motion to the effect, that all of the proceedings in the case below, including the judgment in favor of the ‘plaintiff . . . were null and void. [Cits.]” (Emphasis supplied in part.) Orange County Trust Co. v. Estate of Takowsky, 119 Ga. App. 366 (166 SE2d 913) (1969). See also Mathews v. Cleveland, 159 Ga. App. 616 (284 SE2d 634) (1981).

Judgment reversed.

Quillian, P. J., concurs. Shulman, C. J., concurs specially. Decided January 5, 1983 — Rehearing denied January 27, 1983 — Robert N. Dokson, for appellant. Paul Oliver, William Ballard, for appellee.