Beall v. Surviving Executors of Fox

4 Ga. 403 | Ga. | 1848

£1.] Where a writ of error was brought in the name of Catharine E. Beall and others, heirs at law, held to be a fatal defect — the writ muststate the names of the others.

[2.] Where the names of the others are apparent on the face of the record, the writ may be amended by the record, provided the amendment does not prejudice the rights of any of the parties thereto.

Cone, moved to dismiss the writ, on the ground that the plaintiffs were therein described as “ Catharine E. Beall and others, heirs at law,” without stating who the others were, and cited, Morris vs. Wiley, 2 Kelly.

Gould, same side, insisted, that the decision in Morris vs. Wiley had been overruled by the Legislature. Pamph. 1847. And in support of the motion to amend, cited Carey vs. Rice, 2 Kelly.

Warner, J. delivered the opinion of the Court.

[1.] The writ of error in this casebeingin the name of Catharine E. Beall, and others, heirs at law, is a fatal defect. In Deneale et al. vs. Stump’s Executors, 8 Peters’ Rep. 526, the writ of error was dismissed, because it was brought in the name of Mary Deneale, and others, without stating the names of the others.

In Morris vs. Wiley, Parish Co. 2 Kelly, 287, and in Carey vs. Rice, Ib. 409, we recognized the authority, of the case of Deneale vs. Stump’s Executors, and ruled accordingly. We also held in Carey vs. Rice, that the writ of error might be amended.

[2.] The plaintiffs’ Counselhere, who is the Attorney of record for the heirs at law, now moves the Court to amend the writ by the record, so as to insert the names of the heirs at la,w, appearing in the record, as parties plaintiff in the writ. Notice has been given to the defendants in error, on the part of the Counsel for the plaintiff in error, of the filing-the bill of exceptions, and there will be no surprise, or prejudice, by the amendment. The practice of this Coitrt in allowing amendments, will he as liberal as the law will authorize, provided the amendment does not prejudice the rights of others, not before the Court. The Counsel moving the amendment, is the Attorney of record of the parties whose names are proposed to be inserted in the writ, as parties, and they will be bound by his act. Let the amendment be allowed.