Harrington v. Roberts, 7 Ga. 510

Harrington v. Roberts

7 Ga. 510 | Ga. | 1849

By the Court. —

Lumpkin, J.

[1.] Both administrators are parties to the suit below, and to the judgment sought to be reversed; and we are of opinion that both should have joined in the bill of exceptions and writ of error. The doctrine is well settled, that where there are two administrators, one cannot maintain an action alone. 1 Chitty’s Pl. 53. 9 Coke, 37, (Hensloe’s Case.) 1 Saund. 291, g. 3 Bacon, 32. Smith vs. Smith, 11 New Hamp. R. 459. And the Act of 1847 negatively establishes the same principle as to parties in this Court. It declares that no writ of error shallbe dismissed or delayed in its hearing and decision, where the parties to the writ or declaration below are included in the writ of error. Pamphlet Laws, p. 81. Of course the writ of error will be dismissed, unless all the parties to the cause below are included.

[2.] If the bill of exceptions had been made out in the name of both the administrators, the writ of error, citation, &c. might be amended. But this Court has no power to alter or amend the bill of exceptions.

This objection being fatal, it is unnecessary to examine the other ground taken in the preliminary motion.

"Writ of error dismissed.