155 Ga. 505 | Ga. | 1923
1. Parties who are interested in sustaining the judgment of the court below are necessary defendants to a bill of exceptions brought by a losing party to reverse such judgment; and where some of such parties have not been served with the bill of exceptions, and have not acknowledged or waived service, the bill of exceptions, upon motion, must be dismissed. Humphrey v. Powell, 145 Ga. 458 (89 S. E. 427); Ray v. Hardman, 146 Ga. 718 (92 S. E. 211); Woolard v. Corcoran, 148 Ga. 299 (96 S. E. 564).
2. Where certain creditors of the intestate answered the petition of the administrator to marshal the assets of the estate of his intestate, and by way of cross-petition charged the administrator with a devastavit, prayed for an accounting, and prayed for judgments de bonis propriis and de bonis testatoris against the administrator, and where in the final decree the court below overruled the motion of the plaintiff in error to recommit the case to the auditor, and its exceptions óf law and fact to that portion of the auditor’s report finding against its demand against the estate, and where in this decree it was adjudged that the administrator had been guilty of a devastavit, and judgment therefor was rendered against him in favor of the receiver, and where in this decree judgments were awarded against the administrator in favor of the above-named creditors for the amounts of their claims against the estate, these creditors were necessary defend
3. Where attorneys for .the specified defendants, who had been design -,nated.by the court to-represent certain classes. of creditors of .the estate, acknowledged service of the bill' of exceptions, this acknowledgment did not amount, under fhe’aet of 1911, to -service upon'cer-' -' tain creditors of such classes ’who .appeared and,, in théir. answer to-the -petitipn of the plaintiff in the nature of: a cross-petition, alleged a devastavit by the. administrator., for. which they recovered, and .where, they recovered in the decree separate judgments against the 'admin- ' isfrator upon their claims against the-'éstate; representation .by class }■: (if. applicable to a case like-this; on which see Civil Code (1910); § 5415; Macon &c. Railroad, Co. v. Gibson, 85 Ga. 1, 23, 11 S. E. 442, 21 Am. St. R. 135) ceasing as to those members of the class who appear and répiesént themselves.
4. Where; after the time for the sei-vice of a bill of exceptions,- service thereof is acknowledged. by attorneys for certain defendants, reserving all rights of- objections,, such acknowledgment would not cure the omission to serve these parties in’time, under the act of 1911 (Ga. L. 1911, p. 149, Park’s Code, §§ 6160, 6164(a); Ray v. Hardman, supra); but where thereafter an acknowledgment.of .service for these defendants was made by their attorneys, in which time of service was waived and it was. agreed that the case could be heard in this court, such acknowledgment of service cured the omission to have these defendants served in time.
5. Where the plaintiff in error designated, by amendment to the bill of exceptions, -numerous' parties'as' defendants in error; and where1'the record fails to disclose se’rvice upon, or acknowledgment or 'waiver of service by, some of the designated defendants in error, the bill of exceptions must be dismissed; the presumption being that all of-such ' parties are necessary defendants to the bill óf exceptions, and there being nothing in'the record showing the contrary.
6. It is unnecessary to decide the question Whether the acknowledgment of service of a bill of exceptions by a guardian ad litem for 'a minor ' defendant, who had become of age before such acknowledgment' was made, was good service on such defendant.
Writ of error ’’dismissed.