32 S.E.2d 175 | Ga. | 1944
The judgment overruling the general grounds of demurrer to the petition purports upon its face to be provisional only, indicating such a reservation of jurisdiction in the trial court as to prevent the bringing of a bill of exceptions to this court assigning error thereon. The bill of exceptions must therefore be dismissed for want of jurisdiction in this court to entertain it.
On August 12, 1944, the bill of exceptions was sued out in the instant case, complaining of the overruling of the general demurrer, and complaining that the trial judge on August 2, 1944, overruled an application for supersedeas and an application to require the plaintiff to make an indemnifying bond. One bill of exception was filed, naming Peoples Loan Co., J. Earle Smith, J. H. Geffken, and R. B. Pullen plaintiffs in error.
"It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction." Welborne v. State,
The defendant Pullen filed a separate general demurrer, which was overruled. The defendants Peoples Loan Company, J. Earle Smith, and J. H. Geffken jointly filed the same general demurrer as did Pullen, which was overruled; but added to their demurrer various grounds of special demurrer, some of which were sustained unless the petition was amended within twenty days. The petition named Pullen, Peoples Loan Company, J. Earle Smith, and J. H. Geffken as joint defendants, and charged them with a joint conspiracy to defraud, hinder, and delay the petitioner as a *519 creditor of E. W. Allen. The record discloses that the paragraphs of the petition to be dismissed unless amended were the paragraphs charging the above-referred-to conspiracy. These grounds of the demurrer, while denominated special demurrers, nevertheless had the effect of going to the substance of the whole petition, and challenged the plaintiff's right to any relief against any of the defendants herein named in so far as the charge of a conspiracy to hinder, delay, and defraud is concerned.
We hold, under the circumstances of this case, that the demurrer filed by Peoples Loan Company, J. Earle Smith, and J. H. Geffken inures to the benefit of R. B. Pullen. This would be true even though Pullen had made no appearance and filed no pleadings. "When the trial court erroneously overrules a demurrer interposed by some of the defendants, which goes to the very vitals of the plaintiff's case, and the parties excepting and those not excepting stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment, the judgment of reversal will operate in favor of all the defendants." Tate v. Goode,
In view of what has been said, the bill of exceptions must be dismissed as having been prematurely brought.
Writ of error dismissed. All the Justice concur. *520