To the same effect are Ga. L. 1919, pp. 288, 320 (Code § 32-901) and Ga. L. 1919, pp. 288, 333; 1946, pp. 206, 209 (Code Ann. § 32-1101). We have held on numerous occasions that a school district is a body corporate with the capacity to sue and be sued. Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 834 (1) ( 113 S.E.2d 774); Pinion v. Walker County School District, 203 Ga. 99 ( 45 S.E.2d 405); Taylor v. Matthews, 10 Ga. App. 852 ( 75 S.E. 166). A school board of education, on the other hand, is not a body corporate and does not have the capacity to sue or be sued, Board of Ed. of Baker County v. Hall, 189 Ga. 615 ( 7 S.E.2d 183); Mattox v. Board of Ed. of Liberty County, 148 Ga. 577, 580 ( 97 S.E. 532); Ray v. Cobb County Board of Ed., 110 Ga. App. 258 (2) ( 138 S.E.2d 392); Beckanstin v. Drake, 89 Ga. App. 636 ( 80 S.E.2d 506), except where a school board is created by a separate Act of the legislature and is sui generis, e. g., Morman v. Board of Ed. of Richmond County, 218 Ga. 48 ( 126 S.E.2d 217); Smith v. Board of Ed. of Washington County, 153 Ga. 758 (2) ( 113 S.E. 147); Sheley v. Board of Public Ed. for City of Savannah and County of Chatham, 132 Ga. App. 314 ( 208 S.E.2d 126). The status of the present defendant, Cobb County Board of Education, was discussed in Ray v. Cobb County Board of Ed., 110 Ga. App. 258, supra, a decision concerned with whether or not the Cobb County Board of Education was a "political subdivision" of the state within the meaning of Ga. L. 1960, pp. 289, 673 (Code Ann. § 56-2437).
HEAD, Presiding Justice. 1. Generally, a county board of education is not a body corporate with authority to sue and be sued. Smith v. Board of Ed. of Washington County, 153 Ga. 758 (2) ( 113 S.E. 147); Board of Ed. of Baker County v. Hall, 189 Ga. 615, 617 (2) ( 7 S.E.2d 183); Duffee v. Jones, 208 Ga. 639, 645 ( 68 S.E.2d 699); Smith v. Maynard, 214 Ga. 764 (2) ( 107 S.E.2d 815). The act approved February 25, 1949 (Ga. L. 1949, pp. 1435-1460), creating the "Richmond County Educational System," provides in § 2 that the "Board of Education shall be a body politic and corporate in law, and as such may contract and be contracted with, sue and be sued, etc."
An unincorporated voluntary association is not such a legal entity as to be subject to suit under the laws of this State. Walker v. Grand International Brotherhood of Locomotive Engineers, 186 Ga. 811, 819 ( 199 S.E. 146), and citations. See also Board of Education of Baker County v. Hall, 189 Ga. 615 ( 7 S.E.2d 183); Howard v. Betts, 190 Ga. 530 ( 9 S.E.2d 742). In the present case the plaintiff alleged that the unincorporated association of persons might be represented by the defendants Jesse Baker, William Hayes, and Sam Spence, "members thereof."
Verner v. Board of Education of Haralson County, 203 Ga. 521 (2) ( 47 S.E.2d 500). Accordingly, an ejectment suit brought in the common-law or fictitious form, which laid a demise only in the County Board of Education of Sumter County, Georgia, was subject to dismissal on motion of the defendant that the Board of Education of Sumter County, Georgia, "is not a natural person, a partnership, a corporation, nor an artificial person authorized by law as capable of suing," and the trial court erred in overruling such motion, since no action can be maintained except in the name of a natural or artificial person. Mattox v. Board of Education of Liberty County, 148 Ga. 577 ( 97 S.E. 532); Board of Education of Baker County, v. Hall, 189 Ga. 615 ( 7 S.E.2d 183); Smith v. Commissioners of Roads and Revenue of Glynn County, 198 Ga. 322 ( 31 S.E.2d 648); Verner v. Board of Education of Haralson County, 203 Ga. 521 (1) (supra); Roberts v. Tift, 136 Ga. 901 ( 72 S.E. 234). 3. While this court has held that a suit by named individuals as the duly qualified and acting members of a board of education, brought in their official and representative capacity as such members in behalf of the board, may be maintained ( County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenues of Wilcox County, 201 Ga. 815, 41 S.E.2d 398; Board of Education of Long County v. Board of Education of Liberty County, 173 Ga. 203, 159 S.E. 712; and Landrum v. Thomas, 52 Ga. App. 257, 183 S.E. 140, being a physical precedent for such a suit), and while, under the fictitious form of ejectment, an amendment is permissible laying a new demise, thereby bringing in a new cause of action and new parties ( Roberts v. Tift, 136 Ga.
Although the constitutional provision upon which the act and all proceedings taken thereunder are based does not expressly authorize a county board of education as such to enter rental contracts, it does expressly authorize counties to do so, and, under repeated rulings of this court, such contracts by the county boards of education are the corporate actions of the counties. Smith v. Board of Education of Washington County, 153 Ga. 758 ( 113 S.E. 147); Board of Education of Baker County v. Hall, 189 Ga. 615 ( 7 S.E.2d 183); Board of Education of Wilcox County v. Board of Com'rs of Roads and Revenues of Wilcox County, 201 Ga. 815 ( 41 S.E.2d 398). In Smith v. Board of Education of Washington County, supra, it was said, "Under the law the county acts through its board of commissioners of roads, and revenue in matters of finance, construction of roads, bridges and the like.
The statement in the Mattox case, that a county board of education is not a body corporate with authority to sue and be sued in the ordinary sense, does not mean that they could not be sued under any circumstances. In the Mattox case, as in Board of Education of Baker County v. Hall, 189 Ga. 615 ( 7 S.E.2d 183), the action was improperly brought. In the latter case, there was no allegation that named persons were acting in their representative and official capacity as members of the board of education in bringing the action, nor was there any allegation which would imply that the action was brought for and on behalf of a school district.
In every suit brought in this State, there must be a real plaintiff and a real defendant. The plaintiff or defendant may be a natural or an artificial person, or a quasi-artificial person, such as a partnership. 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. Barbour v. Albany Lodge, 73 Ga. 474; Thurmond v. Cedar Spring Baptist Church, 110 Ga. 816 ( 36 S.E. 221); Mutual Life Ins. Co. v. Inman Park Presbyterian Church, 111 Ga. 677 ( 36 S.E. 880); Wynn v. Richard Allen Lodge, 115 Ga. 796 ( 42 S.E. 29); Western Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 ( 50 S.E. 978); Town of East Rome v. Rome, 129 Ga. 290 (3) ( 58 S.E. 854); Free Gift Society v. Edwards, 163 Ga. 857 ( 137 S.E. 382); Board of Education of Baker County v. Hall, 189 Ga. 615 ( 7 S.E.2d 183); Knox v. Greenfield Estate, 7 Ga. App. 305 ( 66 S.E. 805); Hill v. Armour Fertilizer Works, 14 Ga. App. 106 ( 80 S.E. 294). Where, however, the name imports a corporation, or imports a partnership, an amendment declaring the status of the party may be allowed. Wilson v. Sprague Machine Co., 55 Ga. 672; Smith v. Columbia Jewelry Co., 114 Ga. 698 ( 40 S.E. 735); Hudgins Contracting Co. v. Redmond, 178 Ga. 317 ( 173 S.E. 135); Charles v. Valdosta Foundry Machine Co., 4 Ga. App. 733 ( 62 S.E. 493); Worth v. United Electric Supply Co., 42 Ga. App. 702 ( 157 S.E. 246); Clemons v. Olshine, 54 Ga. App. 290 ( 187 S.E. 711). Where the name does not import a legal entity, but in fact it is a corporation, such defect may be cured by an amendment alleging the corporate character.
The Board of Education of Gwinnett County is not a body corporate capable of being sued in the ordinary sense, as in this case, and the learned trial judge erred in denying the board's motion to dismiss, or in the alternative its motion for summary judgment. Mattox v. Bd. of Education of Liberty County, 148 Ga. 577, 580 (2) ( 97 S.E. 532, 5 ALR 568); Smith v. Bd. of Education of Washington County, 153 Ga. 758, 759 (2) ( 113 S.E. 147); Bd. of Education of Candler County v. Southern Michigan Nat. Bank, 184 Ga. 641 (1) ( 192 S.E. 382); Bd. of Education of Baker County v. Hall, 189 Ga. 615, 617 (2) ( 7 S.E.2d 183); Verner v. Bd. of Education of Haralson County, 203 Ga. 521 (2) ( 47 S.E.2d 500); Parker v. Bd. of Education of Sumter County, 209 Ga. 5 (2) ( 70 S.E.2d 369); Smith v. Maynard, 214 Ga. 764, 769 ( 107 S.E.2d 815); Ayers v. Bd. of Education of Hart County, 56 Ga. App. 146 (1) ( 192 S.E. 256); Ray v. Cobb County Bd. of Education, 110 Ga. App. 258 (2) ( 138 S.E.2d 392); Foster v. Cobb County Board of Education, 133 Ga. App. 768 ( 213 S.E.2d 38) and cits. The foregoing being dispositive, it is unnecessary to consider the other enumerations of error.
See Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 834 (1) ( 113 S.E.2d 774). See also Board of Ed. of Baker County v. Hall, 189 Ga. 615, 617 (2) ( 7 S.E.2d 183). 3. It follows that the judge of the superior court did not err in sustaining the general demurrer of the defendant named in the petition, "The Cobb County Board of Education, acting by and through its duly appointed members in their representative and official capacities," where the sole basis upon which the petition sought to fix liability was the alleged negligence of a school bus driver in failing to use proper care in permitting the plaintiff to alight from the bus at an allegedly dangerous place, and in failing to take sufficient measures to protect the plaintiff from the negligence of the drivers of other motor vehicles using the road at the time and place in question.
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.