145 Ga. 1 | Ga. | 1916
Lead Opinion
Mrs. Subers was not made a party defendant in error, nor was there any service of the bill of exceptions upon her; nor was service acknowledged by her or for her by another duly authorized, with consent that she be made a party by amendment in the Supreme Court, and that the case proceed, as provided under the Civil Code, § 6160, par. 3. A motion was made to dismiss the bill of exceptions, on the ground that Mrs. Subers would be affected by the judgment to be rendered in the case, and was not made a party defendant in error or served with the bill of exceptions. If Mrs. Subers was affected and would be interested in sustaining the judgment which refused the injunction, she would be a necessary party to the bill of exceptions. Western Union Tel. Co. v. Griffith, 111 Ga. 551 (36 S. E. 859); Davis v. Walters, 140 Ga. 229 (78 S. E. 838). In one of the amendments to the petition filed by the plaintiff in the equity suit, Mrs. Subers was made a party defendant to that action and served as such. The notes upon which the suit was based were secured by the deed by which the land was conveyed to Laidler. Although under the contract between Mrs. Subers and Mrs. Parrish the latter undertook to pay off the notes, Mrs. Subers continued to be bound to Laidler on the notes for the amount thereof. The notes were due, and Mrs. Subers was entitled to have them paid by Mrs. Parrish. Any delay in the payment would result necessarily in the accumulation of interest and the continuation of the hazard of deterioration in the value of the property and destruction of the buildings, and the possible failure of Mrs. Parrish to ultimately pay off the debt. It was, therefore, to the interest of Mrs. Subers that the amount of the debt should be collected out of the property without delay. In order to collect the debt out of the property it was necessary to sue Mrs. Subers, the maker of the note, to judgment, and thereafter
Dismissed.
Concurrence Opinion
concurring specially. The general rule requires service of the bill of exceptions on “the opposite party or his attornej.” Civil Code (1910), § 6160. “When the record shows clearly who were the parties to the litigation in the court below, and the bill of exceptions shows that all who were interested in sustaining the judgment of the court below have been served, the writ of error shall not be dismissed because the bill of exceptions . . discloses that some party not interested in sustaining the judgment of the court below has not been served.” Civil Code (1910), § 6176. The plaintiff filed her petition against C. B. Adams as executor of James E. Laidler. The defendant demurred on the ground, among others, that Mrs. Subers was a necessary party defendant. The plaintiff made her a party, presumably a defendant. Thus she ranked Mrs. Subers as an opposite party. While I am not prepared to say that the interest of this party was necessarily adverse to the grant of an injunction, it may have been so, and it can not be declared from the record or bill of exceptions that she was not a party interested in sustaining the judgment, so as to render service on her unnecessary. I am authorized to state that Chief Justice Fish concurs in this view.
Dissenting Opinion
dissenting. Being of the opinion that, under the facts
appearing in the record, the only party interested in sustaining the judgment was made a party defendant to the bill of exceptions, I dissent from the judgment dismissing the writ of error.
