Ramey v. O'Byrne

121 Ga. 516 | Ga. | 1904

Cobb, J.

1. Misnomers in the description of parties to a writ of error are not necessarily fatal. If the variance is not substantial, and it is clear that the party referred to in the bill- of exceptions and the record is the same, a dismissal will not result. Palatine Ins. Co. v. Dickenson, 116 Ga. 794; Fussell v. Dennard, 118 Ga. 270 (4). It need not be determined whether the variance in the present case is so substantial as to work a dismissal if left uncorrected. While a writ of error can not be amended so as to strike out the name of one person and substitute that of another who was the real party in the trial court (Arnold v. Wells, 6 Ga. 380 (3)), a misnomer in the description in the bill of exceptions of one who was a party in the court below may be corrected by amendment. Dupon v. McLaren, 63 Ga. 470; White v. Cook, 73 Ga. 164 (1). See also Civil Code, § 5570. The motion to amend the bill of exceptions, so as to correct the description of the loan association of which the plaintiffs were receivers will be granted.

2. It is settled from the earliest history of this court, that where a writ of error is sued out by one entitled to except, an amendment may be made in the Supreme Court for the purpose of adding as coplaintiffs in error all parties in the court below who the record shows could have united in suing out the writ of error; ánd this, too, without giving notice to the parties so added. Carey v. Giles, 10 Ga. 1 (7); McNulty v. Pruden, 62 Ga. 135 (1); Sharp v. Findley, 71 Ga. 654 (6); Culver v. Mullally, 94 Ga. 644 (1); Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329 (1); Western Union Tel. Co. v. Griffith, 111 Ga. 551 (1); Macon Nav. Co. v. Schofield, 111 Ga. 881 (1), and cit. Parties so made may unite with the original plaintiff in error in the assignments of error, which he has made, or they may sever and seek to uphold the judgment. Carey v. Giles, supra; Steele Co. v. Laurens Co., supra; Western Union Tel. Co. v. Griffith, supra. A writ of error sued out only by a person not entitled to except is void, and can not be amended so as to insert as a plaintiff in error the name of a person who would have been entitled to sue out the writ. Swift v. Thomas, 101 Ga. 89 (2). See also Berendt v. McHugh, 121 Ga. 97. The amendment making Treadaway as administrator a party plaintiff in error will be allowed.

3. The third ground of the motion to dismiss the writ of error is obviously without merit. A party may in this State except • either to a final judgment adverse to him, or to one which would have been final “if it bad been rendered'as claimed” by him. Civil Code, § 5526. To the latter class of judgments belongs a ruling overruling a demurrer to a petition. Central R. Co. v. Denson, 83 Ga. 266 (2). See also Savannah Ry. Co. v. Renfroe, 115 Ga. 774 (1), and Long v. State, 118 Ga. 319 (1), which related to the overruling of a demurrer to an indictment.

4, 5. As we construe the petition, it undertook to set forth two causes of action; one against Mrs. Barney for the recovery of land of which she was in possession, and another against the administrator of the estate of Barney for the recovery of a judgment on a debt due by his intestate, with a prayer that the judgment be made a special lien on the land in possession of Mrs. Barney. The petition therefore was subject to the objection that it contained “distinct and separate claims . . against different persons.” Civil Code, §4938. The code also provides that all claims arising ex contractu may be joined in one action; and that all claims arising ex delicto may be so joined. Civil Code, §4944. By implication from this section, ás well as by express provision of the section first cited, claims belonging to the two different classes can not be joined. The writ upon which the action of ejectment was founded was a mere action of trespass, in which damages only were recoverable. Tyler on Ejectment, 34; Cumming v. Butler, 6 Ga. 91. Afterwards, under the action of ejectment, the land as well as damages could be recovered. Chitty speaks of this action as a mixed action. 1 Chit. Pl. 125. This court has said that ejectment “ is not strictly an action for a tort, but is a mixed action, partly and nominally for a tort, but mainly to try title to land.” Lopez v. Downing, 46 Ga. 120. The.fact that in this State, since the act of 1834, mesne profits are recoverable, does not change the nature of the action; for mesne profits are in the . nature of damages, and other - damages may be recovered in the action for trespasses committed while the defendant was in possession. Cunningham v. Morris, 19 Ga. 583; Ezzard v. Mining Co., 74 Ga. 523. Our statutory action for the recovery of real property is the successor of the old action of ejectment, and follows it in . many important respects. The difference is mainly in procedure, being a simpler and more direct method of accomplishing the same purpose. In it mesne profits may be recovered, as well as such other damages as could have been recovered in the old action. See, in this connection, 10 Am. & Eng. Enc. Law (2d ed.), 472. The statutory action, therefore, may also be characterized as a mixed action. It is certainly not, under any view of it, an action ex contractu, and can not be joined with such an action. We think, therefore, that the court erred in overruling that ground of the demurrer which set up that the petition sought to set forth two separate and distinct causes of action against different'persons.

We do not, however, think that there was a misjoinder of parties defendant. If a simple action of ejectment had been brought against Mrs. Ramey as the tenant in possession, and the administrator had claimed an interest in the land, he could have been made a party defendant by simply serving him with a copy of the petition, and he would have been bound by the judgment. Civil Code, § 5001. If this is so, there would seem to be no good reason why he might not have been sued jointly with the tenant in possession in the first instance. On the other.hand; if the suit had been simply to recover a judgment against the;-administrator on the debt due by his intestate, with a special ;lien on- the land, Mrs. Ramey, as the widow and heir at law of the intestate, would not have been a necessary, even if a proper party defendant. The petition, however, does not join Mrs. Ramey and the administrator as defendants to either cause of action, but undertakes merely to set up a separate and distinct cause of action against each of them alone.

The defendants in error asked that, in the event of a reversal, direction be given that they be allowed to amend so as to relieve the petition of any infirmity that may be therein. As the demurrer was overruled, and the case will not be dismissed until the remittitur is entered and the judgment of this court made ,-the judgment of the trial court, no such direction is necessary, but the plaintiffs are at liberty to amend at any time before a judgment of dismissal is entered. See Cooper v. Brewing Co., 113 Ga. 3, and cit. Judgment reversed.

All the Justices concur.