155 Ga. 834 | Ga. | 1923
Rehearing
ON MOTION ROE REHEARING.
This was a petition brought by the administrator to marshal the assets of the estate of his intestate, and to enjoin creditors, who had instituted suits, from pressing them, and to enjoin those who had not brought suits from instituting them. The heirs at law and various creditors were made defendants thereto. On the presentation of this petition to the judge for leave to file same and for a temporary injunction, the court designated the Stevens Hardware Company as the representative of the class of resident creditors holding open accounts in the County of Laurens, and designated S. B. Jaques & Tinsley Company as the representative of the class of non-resident creditors holding open accounts. Jones, Park & Johnston as attorneys acknowledged service of the petition for S. B. Jaques & Tinsley Co. and the Fourth National Bank of Macon. S. B. Jaques & Tinsley Co., I. Kessler Commission Co., Dunlap Hardware Co., Macon Grocery Co., United States Sales Co., Armour &, Co., Belknap Hardware & Manufacturing Co., Bouse-Hempstone & Co., Leo Frank Inc., D. M. Ferry & Co., and the Waxelbaum Company filed an answer in the nature of a cross-petition against the administrator, alleging that he had been guilty of a devastavit, and praying judgment de bonis propriis and de bonis testatoris against him. Each of these parties obtained a judgment against the administrator, and likewise recovered a judgment in favor of the receiver for a large amount on their cross-petition setting up such devastavit. The administrator sued out a bill of exceptions. Jones, Park & Johnston acknowledged service on'the bill of exceptions as “ attorneys for S. B.- Jaques & Tinsley Co., open acct. creditor, & Fourth Nat. Bank of Macon, note creditor; for S. B. Jaques & Tinsley Co;, representative of non-resident creditors.” There is no further service or acknowledgment of service on the bill of exceptions of the above defendants who answered the petition of the administrator, and who represented themselves in this litigation, and each of whom recovered separate and distinct
1. Conceding that this was a proper case for the appointment of representatives of classes, when members of a class of creditors came in, answered the petition of the administrator, represented themselves in such litigation, and each obtained a judgment on his claim against the administrator, the bill of exceptions should he served upon each of such creditors, or acknowledgment of service on the bill of exceptions by each of said creditors should be obtained; and service on the representative of the class to which they belong or acknowledgment of service by the attorney of such representative is not binding on such creditors, although such attorney likewise represented these creditors.
2. It is insisted that this case is controlled by the act of Aug. 21, 1911 (Acts 1911, p. 149, Park’s Code, § 6164 (a) ), which regulates review procedure and practice in this State. Section 4 of that act declares: “ That where a bill of exceptions which can be identified as excepting to a specific judgment is served upon counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court. Where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is nob to be construed as waiving some particular defect then pointed out by him.” If the bill of exceptions in this case had been served upon counsel of record in the case, such service should be held to bind all parties whom such counsel represented in the trial court. So if the bill of exceptions had been served upon Jones, Park & Johnston, attorneys representing these defendants and also representing the representative of the class of creditors to which these defendants belong, it would be binding upon all parties whom they represented in the court below; but service was not perfected in this manner. Acknowledgment of service of the bill of exceptions was procured from these attorneys, they specifically acknowledging service for two named defendants and for one of these defendants who represented the class of creditors to whom these other defendants
Lead Opinion
Under the principles ruled in Clark Milling Co. v. Simmons, 155 Ga. 505 (117 S. E. 437), the writ of error in this case is dismissed on the ground that all of the proper defendants in error have not been served with the bill of exceptions as required by law.
Writ of error dismissed.