Toccoa Electric Power Co. v. Panter

178 Ga. 258 | Ga. | 1933

Atkinson, J.

In Orr v. Webb, 112 Ga. 806 (38 S. E. 98), a decision rendered by four Justices, it was held: “A bill of exceptions should on its face affirmatively and unequivocally show who are the parties thereto; and, in strictly good practice, the plaintiff, or plaintiffs, and the defendant, or defendants, therein should be expressly designated as such eis nominibus. . . The abbreviation fet al.,’ when used in a bill of exceptions, can not be held to designate any person or persons,” In the opinion it was said: "The recitals in a bill of exceptions should in ever}' instance be sufficiently clear and explicit to enable the officer into whose hands it may be placed for service to determine beyond peradventure precisely whom he is expected to serve. The bill of exceptions now before us by no means comes up to this reasonable standard of certainty.” This ruling was followed in Devore v. Ponder, 113 Ga. 21 (38 S. E. 387), decided by the entire bench of six Justices, where it was held: “The questions presented by the motion to dismiss the writ of error in the present case, and by the motion to amend the bill of exceptions, are controlled by the decision of this court in the case of Orr v. Webb, 112 Ga. 806. It results that the former motion must be sustained and the latter denied.” In McEachin v. Jones, 165 Ga. 403 (3) (140 S. E. 878), it was held: “Before the passage of the act of 1911, the denomination of parties who are necessary parties defendant in error by the words et al., following the name of one who is a proper defendant in error, rendered the bill of exceptions fatally defective for want of necessary parties. Orr v. Webb, 112 Ga. 806 (38 S. E. 98); Farr v. Farr, 113 Ga. 577 (38 S. E. 962); Sistrunk v. Pendleton, 129 Ga. 255 (58 S. E. 712). By the act of 1911 this defect is amendable, and not fatal; but such bill of exceptions is defective, and in the absence of amendment will be dismissed for want of necessary parties defendant.” Citing Adair v. Bradford, 165 Ga. 288 (140 S. E. 78). In Felker v. Still, 158 Ga. 343 (123 S. E. 303), it was held: “It appearing that the only party named as a defendant in error was deceased at the time the bill of exceptions was sued out, and there being no designation of any other party as defendant in error except by the words ‘et al./ the bill of exceptions was fatally defective, and there was nothing- to amend by, the words ‘et al./ not representing any codefendant in error. Orr v. Webb, 112 Ga. 806 (38 S. E. 98); Sistrunk v. Pendleton, 129 Ga. 255 (58 S. E. 712). The act of 1911 (Ga. L. 1911, p. 149) does not change the ruling made in the above-cited cases.” In the McEachin and Adair cases at least one defendant in error was properly named in the bill of exceptions. In the instant case the bill of exceptions shows on its face that there were several plaintiffs and a sole defendant in the trial court, and by the judgment of the trial court (which is set out at length in the bill of exceptions) rulings were made favorable to certain of the plaintiffs and adversely to others, which rulings were excepted to by the defendant generally upon stated grounds. The bill of exceptions did not purport to name expressly a party plaintiff or a party defendant therein, or which of the several plaintiffs in the trial court affected differently by the rulings complained of were intended to be parties defendant in error. The writ of error must, on motion, be dismissed on the ground that the bill of exceptions fails to state parties defendant in error. The acknowledgment of service of the bill of exceptions by the attorneys of record for all the plaintiffs in the trial court, as “attorneys for D. W. Panter et al., defendants in error,” will not cure the defects just stated. If the objections to the bill of exceptions could have been cured by amendment, there was no offer to amend by making proper parties defendant in error.

Writ of error dismissed.

All the Justices concur.