Smith v. Cooper

21 Ga. 359 | Ga. | 1857

By the Court.

Lumpkin, J.

delivering the opinion.

It is wholly useless to recite the facts of this case for the purposes of this decision. They would fill a volume.

[1.] In form there are three parties to the litigation, namely: the representatives of Dr. Boykin, who, together with Major Crawford, was the executor of Mrs. Polly W. Jenkins; the children of Mrs. Jones; and the children of Mrs. Wright, who were the daughters of Mrs. Jenkins, and legatees under her will. In point of fact, however, the real controversy is between these two families. Three bills are pending in the Court, one at the instance of the Jones against the executors ; one at the instance of the executors .against the Jones and Wrights; and one at the instance of the Wrights against the executors and the Jones. A trial was had on all the cases, the whole being submitted together, and a decree rendered, determining the liability of the executors as stake holders, to each branch of the family, and consequently fixing their respective rights as between themselves. The executors were satisfied with the decree, as well as the Wrights, but an appeal was entered by the Jones, who prosecuted also a writ of error to this Court for the correction of the errors alleged to have been committed on the trial of the tri-party cause. Upon motion, this writ of error was dismissed upon the ground that the appeal by the Jones carried up the whole litigation, and that therefore the writ of error had been prematurely brought. 18 Ga. Rep. 281.

We see no reason to change that opinion, and consequently overrule the first ground taken in the present bill of exceptions ; and that is, that the Wrights not having appealed, the case is ended as to them.

[2.] The second and third assignments of error may be considered together. By the decree both the Wrights and the Jones were perpetually enjoined from the further prosecution of their several bills. A motion was made in the Court below by the solicitor of the Wrights, to dissolve this injunction on the ground that the executors had failed to speed their cause, and that they had continued the same at the last November Term of Muscogee Superior Court. The last assumption is not warranted by the record. On the contrary, it does appear by the written agreement of the counsel of the respective parties, which accompanies the bill of exceptions, that, before the motion was made to dissolve the injunction, Mr. Hill, the solicitor for Dr. Boykin’s representatives, had caused an order to be passed, requiring the defendants to answer their bill as amended, upon the terms stated in the rule, and setting down their bill for trial at the next May Term of the Court. In other words, at their instance an order had already been passed to speed the cause, and no exception taken to it. In the face of this order, the opposite counsel comes’too late with his motion to dissolve the injunction, because the case is not prosecuted with due diligence.

[3.] As to the statement made by Mr. Hill, the solicitor of the executors, we hardly know what point is intended to be made on it. The argument is, that it should have been sworn to. But no such objection appears in the record. It is usual to take the statement of counsel in their place as to the service of amendments, interrogatories, notices &c. It is undoubtedly the right of the opposite party to require them to be verified if they see fit. The Court, however, pronounced no judgment, neither do we ; but merely express this informal opinion as to the proper practice to be pursued in such cases.

Judgment affirmed.