Richter v. Macon Gas Co.

144 Ga. 650 | Ga. | 1916

Evans, P. J.

(After stating the foregoing facts.)

On the call of the case a motion was made to dismiss the bill of exceptions, on the ground that the judgment to which exception is taken is not a final disposition of the case, as it only strikes a part of the petition, and leaves the petition, stating a complete cause of action, pending in the superior court; and on the further ground that the Georgia Light, Power and Railways and J. G. Campbell are necessaiy parties, and no service of the petition has been made upon them in the superior court, and no service of the bill of exceptions has been made on them. We will notice these points in their inverse order.

1. An order was passed in the superior court, providing for service by publication of the petition on the. Georgia Light, Power and Railways; but the record does not show compliance therewith. That corporation did not become a party in the court below, and therefore is not a necessary party in this court to the review of the judgment complained of.

2. The petitioners complain as stockholders. They allege a cause of action against the Macon Gas Company, and its directors, to enjoin them from increasing the amount of the common capital stock of the gas company, in excess of the charter limitation, over their protest and without their consent. It was so ruled when this court had under review the interlocutory judgment. Macon Gas Co. v. Richler, 143 Ga. 397 (85 S. E. 112). In addition to this relief the plaintiffs seek'to have the court take the Macon Gas Company out of the hands of its officers and appoint a receiver, so as to deprive the majority stockholder of its right to vote. The court was of the opinion that the allegations concerning this aspect of the case made the petition multifarious, and, in view of the previous procedure for an interlocutory injunction against an increase of the capital stock, struck sueh allegations from the petition. With these allegations stricken the petition stated a complete cause of action which had not gone to final decree. In other words, the action is still pending in the superior court. The plaintiffs must of necessity take one of two positions: either the Macon Gas Company and its directors and the resident defendants were the only parties defendant in the court below, or the nonresidents named in the petition were also parties. If the latter position be taken, then the non-resident defendants must he served with the bill of exceptions. A failure to serve them will result in a dismissal of the bill of exceptions. If the other position be assumed, then the question is presented, whether a plaintiff can by bill of exceptions review a judgment striking a part of his allegations, leaving the petition stating a complete cause of action pending in the trial court. We answer that question in the negative. A contrary ruling would countenance a separate review of every interlocutory ruling, irrespective of the finality of the decision or its effect on the case. This holding does not. conflict with the ruling that a judgment .on demurrer as to one defendant in a joint action, against him and others, is reviewable by direct exception. See Burns v. Horkan, 126 Ga. 161 (54 S. E. 946). It follows that the writ of error must be

Dismissed.

All the Justices concur.