78 Ga. 359 | Ga. | 1887
We think the trial took place in pursuance of the order of October 22d, 1881. The last paragraph of that order was never excepted to, pendente lite or otherwise, as may be seen by scrutinizing the record from page 249 to 252 (d) inclusive. This paragraph directs “that the case stand for trial upon the original bill and parties complainant as amended December 6th, 1880, and the matters alone responsive thereto in the answers of the several defendants, exclusive of the matters set forth in the cross-bills of the defendants filed as above stated.” Thus the order for trial severed, the, bill from the cross-bills, as such, and we do not discover from the record that the connection was ever restored, o.r that, the court paid much more attention to cross-bills, whether filed before the order was passed or afterwards. The master’s report indicates that the master thought, or inclined to think, that no cross-bill was .before him, and the amendment last filed to the main bill was finally shaped so as to put in issue all matters in dispute before the master, and upon which proof was offered before him, but which might not be sufficiently put in issue by the original bill. This finality of form was given to the bill as late as December 8th, 1886, nearly the last day of the peripatetic hearing. Thus
As did the court below, so shall we leave the cross-bills behind us. Four of them were put to sleep, under demurrer, October 22d, 1881, then partially awakened, June 15th, 1882, by setting them for trial at the next October term. Another, purporting to be an amendment, the same day the four were laid out by demurrer, was filed October 22d, 1881, and has not since moved in its bed, so far as we can ascertain. The last of all was filed December 8th, 1886, and is at rest in the record. Whether the court below ever looked upon' its face, we know not. It was served on nobody except the complainants in the main bill, named no one as party defendant, had no prayer for subpcena, and no subpcena was attached to it. It was a mere answer, with prayers for relief' scarcely incompatible with the prayers of the original bill.
Having thus ascertained that the case tried was the main bill, and it alone, we are prepared to rule on the motion made to dismiss the writ of error, our decision upon which was reserved un-fl after the-whole case was argued because of the bewildering intricacy of the amendments, orders, exceptions, etc., etc.; the record being a swarming hive of professional industry and fecundity. Until this record came before us, we had no adequate conception of our brother Miller’s energy; and he doubtless will never have any conception whatever of the torture which his energy has cost the writer of this opinion, whilst he, the writer, was supposed to be taking his ease in the romantic wilds of upper Georgia. A skeleton in one’s closet is nothing to such a record in one’s trunk in full view of the mountains.
The first ground , is that certain named defendants to the original bill are not made defendants in error. One of these defendants, Gardiner, died pending the cause and was dead at the hearing. His representatives, if he had any (and of this the record does not inform us), were never made parties in the court below. If the case could be tried without them as parties, it certainly could be reviewed without them. The others, as was also the deceased, were non-residents of the State and were served with the bill and some of the cross-bills by publication, but never appeared in person or by counsel, never pleaded, answered or demurred to the original bill or to the cross-bills. As these defendants were beyond the jurisdiction of the court, and stood aloof from the case, although parties on the record, the trial below was ex parte as to them, and it is therefore doubtful whether they are necessary parties to the writ of error at all. But whether so or not, they cannot be necessary parties defendant, for they stand in the record on the same side of the case with the plaintiffs in error, and they should be co-plaintiffs in error if anything. Perhaps it is the sounder view that they ought to occupy that position, and we have accordingly passed an order granting leave to join them as co-plaintiffs in error by amendment, and the privilege of amending has been exercised conformably to that order. For the practice in such matters, see McNulty et al. vs. Pruden, 62 Ga. 135, and authorities cited. There is no doubt that, relatively to the main case, this amendment covers all possible objection touching the want of parties, for when a bill .in equity, filed for direction, etc. by an executor against creditors of the estate and his own personal creditors, is brought to this court by some of the latter, it is not necessary to make any of the defendants in the bill defendants in error.
The master’s report of the evidence is no less a part of the record than is the rest of the report, and the whole report should and does come up in the transcript. It follows that none of the evidence need be incorporated nor referred to in the bill of exceptions. This view of the matter disposes of the sixth ground of the motion as well as the third.
The motion to dismiss the writ of error is denied.
It is contended that when an executor files. a bill as executor, he commits himself to nothing in his personal and individual character, that he is not a party otherwise than as representing the estate, and that pending the bill, he may act as freely, touching any individual right or interest involved, as if some other person were the complainant. To this doctrine we are quite unable to assent. On the contrary, as we understand the law, an executor who .files a bill in his representative capacity is a party thereto in
The master’s report is fundamentally at variance with the principles of this opinion, and without discriminating between the sound and unsound exceptions to it, we direct that they be sustained as a whole for the purpose of clearing the case of that report entirely.
As to the elaborate and highly complicated machinery of the case, we purposely leave that intact, so that it may be worked by those who constructed it. Perhaps it may be expedient at some time to arouse the cross-bills and set them in motion, or it may be necessary even to add to them a few more of the same sort, but we hope not. It really looks like the ends of substantial justice might be reached without them, but it is well enough to hold them in reserve till after another experiment, the one already made being, as we have seen, misdirected and utterly barren. The train of the case was switched off into a siding instead of being run through on the main line. Having started as a through train, it must go through, and what is no less important, must keep its freight on board, not deliver the whole of it en route, or at some way station, to favorite consignees.
Judgment reversed.