101 Ga. 89 | Ga. | 1897
In the bill of exceptions, the case is entitled thus : “Mrs. M. A. Swift et al., caveators, plaintiffs in error, v. W. W. Thomas and Arthur E. Griffeth, propounders, defendants in error and it is stated that “ the above stated case ” came on to be tried at the April term, 1896, of the superior court of Clarke county, and on the 29th of April, 1896, “ the same being a caveat to the probate of the will of Y. L. G. Harris; it having been regularly appealed according to law from the court of ordinary, of Clarke county also that “ said M. A. Swift and each and all of the other caveators present this their bill of ex
The cross-bill of exceptions states that Mrs. M. A. Swift was not a caveator; and the case is therein referred to as “ the case of W. W. Thomas and Arthur E. Griffeth v. C. M. Harris et al., caveators, which case is stated in what purports to be the original bill of exceptions, now pending in the Supreme Court, as ‘ Mrs. M. A. Swift et al., caveators, plaintiffs in error, v. W. W. Thomas and Arthur E. Griffeth, propounders, defendants in error,’ and to which this paper is intended to be a cross-bill of exceptions.” The cross-bill further states: “It is contended that what purports to be the original bill of exceptions is not a legal bill of exceptions in said case, and this bill is filed reserving to the plaintiffs in error herein all rights they may have to
A motion was made to dismiss the writ of error, upon the ground that there was no party plaintiff in error named in the bill of exceptions, who was entitled to prosecute a writ of error from the judgment complained of; and we will now proceed to inquire whether this motion should prevail.
We have sought diligently to find a precedent for such a proceeding in the numerous cases involving questions somewhat akin to this, which have been adjudicated in this court, but we have been enabled to find no warrant or authority of law for such a proceeding. Treating bills of exceptions and writs of error to this court as being amendable according to the same liberal rules which apply to pleadings in other courts, we are unable to sustain upon reason or authority the bill of exceptions in this case; for in no court is it competent to support an action by the introduction of a plaintiff where none existed at the time of the institution of the action. Such actions abate when the attention of the court is directed to the absence or non-existence of a party plaintiff, and such defects are not in those courts curable by amendment.
In the present case we are unable, either from the bill of exceptions or the record, to find any trace of a plaintiff in errorauthorized to prosecute this writ of error who is capable of individual identification, and this being true, it follows that.
Dismissed.