49 S.E.2d 498 | Ga. | 1948
Lead Opinion
The bill of exceptions names I. S. Mack, as administrator of Fannie Valentine Owens, as the only defendant in error. One of the defendants named in the petition, Fannie Valentine Dickens (for whom service of the petition was acknowledged by counsel), is not named as defendant in error, nor was service of the bill of exceptions perfected on her. The interest of Fannie Valentine Dickens, as a claimant to the property, is antagonistic to the claim of Carrie Bell Johnson Owens, the plaintiff in error. Manifestly Fannie Valentine Dickens would be interested in having the judgment of the court below sustained, *293
since the administrator is required under a prior order of the court (which order would be nullified should the demurrer be sustained) to collect rents on the property from the claimant, Carrie Bell Johnson Owens, pay the taxes, and preserve the property and moneys collected for the person whose claim of title is eventually sustained. Under the well-recognized rule that all persons interested in sustaining or reversing the judgment of the trial court are indispensable parties in the Supreme Court and must be made parties to the bill of exceptions, this court is without jurisdiction, and the writ of error must be dismissed. Edwards v. Wall,
Writ of error dismissed. All the Justices concur, except Duckworth, P. J., who dissents, and Bell, J., absent on account of illness.
Chief Justice Duckworth dissented from the denial of the motion for a rehearing, directed that his dissent be entered on the *294 judgment of September 7, 1948, and wrote the following dissenting opinion: I. S. Mack, as permanent administrator of Fannie Valentine Owens, filed a petition alleging: At the time of the death of Fannie Valentine Owens there were two deeds of record vesting title in her and Sam Valentine to described property. The petitioner was administering upon the estate of Fannie Valentine Owens, consisting principally of her interest in the described property. Fannie Valentine Dickens, Carrie Bell Johnson Owens, and Mary Owens, have each made demand upon the petitioner that he either deliver the property, or the proceeds from any sale thereof, to her. The petitioner has no interest in the controversy other than to be directed by the court in the distribution of the property. There is certain personal property in the physical possession of Carrie Bell Johnson Owens, who also occupies the major portion of the real estate. In order to avoid a multiplicity of suits, it is necessary that all persons claiming the property be required to interplead and assert their claims. The prayers were: that each of the defendants be required to interplead and assert her claim; that they be enjoined from instituting or prosecuting any claim except in the instant suit; that the petitioner be authorized and directed to hold the property during the pendency of the suit; that direction be given the petitioner in the premises; and for process, service, and further relief.
On April 18, 1947, a rule requiring the persons named as defendants to show cause why they should not be required to interplead was duly entered. It was further provided that the defendants were enjoined from prosecuting any suit relative to the subject-matter other than in the present action, and "petitioner is directed to hold the described property which is in his legal custody as administrator," keep the same in good order and repair, collect reasonable rent, and pay taxes as they may become *295 due; and service was ordered to be perfected on non-resident defendants by publication, unless such service should be acknowledged.
On May 19, 1947, the defendant, Carrie Belle Johnson Owens, filed a general demurrer to the petition of Mack, as administrator. On May 27, 1947, another order was passed by the judge of the superior court, in which it was recited that Carrie Bell Johnson Owens was in possession of the property described in the petition, and it appearing that "there are several claimants to the title to the property," it was ordered that she remain in possession for one year, or until December 24, 1947; that I. S. Mack, administrator, is entitled to possession subject to the right of Carrie Bell Johnson Owens, as set forth; that, at the expiration of the year, I. S. Mack should collect rent on the property and hold all sums collected until "title to the property is determined on a trial of the issues;" and that title was not adjudicated by the order, but such issue was "left to the determination of a jury." On May 13, 1948, an order was entered, in which it was stated that, in view of the order of May 27, 1947, the general demurrer of the defendant, Carrie Bell Johnson Owens, was overruled. The exception is to this order.
Dissenting Opinion
I dissent on the ground that a reversal of the judgment overruling the general demurrer by this defendant in an interpleader proceeding could not adversely affect another defendant to the same proceeding.