111 Ga. 551 | Ga. | 1900
When this case came on to be heard at the October term of this court, counsel for Mrs. Griffith presented a motion to dismiss the writ of error, on the ground that the Augusta Railway and Electric Company was a necessary party thereto, but had not been named as such in the bill of exceptions. Thereupon counsel for the Telegraph Company, without conceding that the Railway Company was (an indispensable party, asked leave to amend the bill of exceptions “from the record in the casé,” agreeably to the provisions of the Civil Code, § 5570, by inserting the name of the latter company as a coplaiutiff in error. After argument had as to the right of the Telegraph Company to make the proposed amendment, we granted it permission so to do, and overruled the motion to dismiss. This was, as we shall undertake now to show, in accord with a rule of practice which has been uniformly adhered to and consistently applied during a period of more than half a century.
Then came the practice act of 1847, which wrought no change in the rules of procedure save to provide that thereafter it should not be necessary to join in the writ of error securities on appeal or upon injunction bonds, but that such persons only as were formal parties to the pleadings iri the lower court should be considered indispensable parties to a writ of error sued out to review a judgment therein rendered. See Carey v. Giles, 10 Ga. 8, wherein this statute was cited and construed. The court in that case declared it necessary not only to include in the writ of error all essential parties thereto, but to observe the equally important requirement that they be therein joined “in the order in which they stand in the record below.” As explanatory of what was meant by the phrase just quoted, and as affording an illustration of how this requirement could and should be met,
In the year following that in which this decision was rendered, the General Assembly passed what we may term the “saving act.” Acts of 1880-81, p. 123. Among other things, it provided for curing by amendment “any imperfection or omission of necessary and proper allegations” in the bill of exceptions which “could be corrected from the record in the case,” and declared that no writ of error should be dismissed “on any ground whatever” which could be “removed during the term of the court to which the said writ of error is returnable.” Civil Code, §§5570, 5567. In express terms, this statute further declared that no dismissal should result simply “because the bill of exceptions sets forth the parties differently from the record, or discloses that some party not interested in sustaining the judgment of the court below had not been served,” provided the record shows “clearly who were the respective parties to the litigation in the court below, and the bill of exceptions shows that all who were interested in the case, as presented in the Supreme Court, in sustaining the judgment of the court below had been served.” Ibid. § 5562. No change in the then prevailing practice concerning a proper alignment on opposite sides of the respective parties at interest seems, however, to have
Recognizing that the act of 1881 went no further than as above indicated in establishing different rules of practice, this court held, in a case arising after the passage of that statute: “Where some of the defendants to a-bill in equity except to the overruling of a demurrer to the bill, they need not serve their codefendants with the bill of exceptions.” Mechanics’ Bank v. Harrison, 68 Ga. 463. It may further be observed that, since that act went into effect, the practice which formerly prevailed as to allowing writs of error to be amended by the record so that proper parties plaintiff might be added has also been consistently adhered to and applied in a number of instances. See Swatts v. Spence, 68 Ga. 496, 499; Sharp v. Findley, 71 Ga. 655; Epping v. Aiken, Ibid. 682; Fouche v. Harrison, 78 Ga.
In view of the practice outlined above, it is clear that as the Railway Company was not a coparty with Mrs. Griffith in the court below, it did not belong on that side of - the case which she occupied before this court. Certainly it was not incumbent upon the Telegraph Company, if it desired to bring here for review the judgment overruling its separate demurrer, to make the Railway Company a party defendant to the bill of exceptions. Jones v. Hurst, 91 Ga. 338, citing previous decisions of this court. But counsel for Mrs. Griffith contended that a new trial could not legally be granted as to one only of the joint defendants below, and accordingly argued that, as the Railway Company was not made a party to the motion therefor or to the present writ of error, the case should be dismissed. This position is not altogether logical. If that company was, as insisted, an indispensable party to the motion, it would simply follow, as a result of not making it a party, that the Telegraph Company could not in its bill of exceptions justly complain that the trial judge committed error in refusing to grant a new trial which could not lawfully take place, and would have to depend alone 'upon its assignment of error touching the overruling of its demurrer. That is to say, the mere fact that there might be no merit in one of its complaints would not justify a dismissal of its bill of exceptions, if it presented another question properly raised which could and should be passed upon. We are, however, by no means prepared to agree with counsel as to-the correctness of the premise upon which they based their argument. Although the action brought by Mrs. Griffith was against both companies as joint tort feasors, her right to recover in the case did not depend upon her ability to prove that both were liable to respond in damages. She might, before trial, have voluntarily dismissed her action as to one and proceeded
It remains only to briefly notice a point raised by the Railway Company, which appeared- before this court through its attorney and strenuously resisted being made a party to the case on the ground that it was in no wise interested in the outcome of the controversy here presented. In this connection, counsel confidently made the assertion that his client was not even a proper, much less a necessary, plaintiff in error. We did not at the time, nor do we now concur in this view. Under the facts disclosed by the record, it is, indeed, manifest that the Railway Company had itself no right to" sue out the writ of error. Braswell v. Mortgage Co., 110 Ga. 30; Collier v. Hyatt, Id. 317. But as the bill of exceptions was filed by a party entitled to except to the rulings therein complained of, 'it by no means follows that the company just mentioned was not at least a proper party plaintiff. As has been seen, the rule of force prior to the passage of the act of 1881 was, that all parties to the record below were not only proper but necessary parties to a writ of error. That act, in providing against the dismissal in this court of bills of exceptions for want of necessary parties, went no further than to declare that, in determining who really were indispensable parties thereto, “no party shall be considered as interested in the litigation in the Supreme Court who will not be affected by the judgment to be rendered in that particular case, such as” mere stakeholders and other purely nominal parties to the controversy in the court below. It can not, therefore, be said that any formal party to the record in the trial court is not still to be regarded a proper party to a bill of exceptions, irrespective of the question whether he be an essential party thereto or not. Counsel based his argument upon the proposition that his client had been absolved from liability by the jury, whose finding was binding and conclusive, the same never having been set aside; but the record before us, by which alone we are to be governed, is silent as to whether or not any steps have been taken by Mrs. Griffith to further press her action as against the Railway Com
One of the defendants in the court below, the Telegraph Company, met the plaintiff’s petition with a general demurrer, and also demurred specially thereto oh the ground that there was a misjoinder of parties defendant therein. We now rule specifically, as was practically decided when the case was here at the March term, 1898 (104 Ga. 62), that the plaintiff set forth in her petition a cause of action, and properly joined
The Telegraph Company also sought to compel Mrs. Griffith^ to set forth the manner in which notice was brought home to it that its wires were in contact with those of the other defendant. We think her allegation that both of the defendant companies had knowledge of the facts stated in regard to this matter was amply sufficient in point of detail. An individual would certainly not be entitled to call upon the plaintiff to exhibit to him, in advance of the trial, the particular evidence, by which she expected to show such knowledge on his part. A corporation stands upon no better footing; for, theoretically at least, it has an equally good opportunity to know whether it did or did notknow facts alleged to have come within its knowledge, and therefore is prepared to meet such an allegation with all the evidence at its command.
3. Two distinct points of objection were raised by the Telegraph Company to the allegation contained in the plaintiff’s petition concerning the expense incurred by her for medical attention and nursing. One of these objections is presented by .a speaking demurrer, wherein the company advances the argument that as it appears “ that Mrs. Griffith is a married woman, and it does not appear but what her husband is living,” she can not recover such expenses, as the same should have been . borne'by him. We will dismiss this point with the suggestion that it should have been raised in the company’s answer as matter of defense. Had the demurrer specifically called upon Mrs. Griffith to state whether or not she had a living husband, an altogether different question would be presented. The other •objection should have been met by an appropriate amendment, for it was directed against, and clearly pointed out, the omission of the plaintiff to allege the amount she expended for medical attention and nursing. It is possible that her counsel looked upon this point as too trivial to require serious consider^ ation, and would regard it a great hardship were we to reverse the judgment simply because a proper amendment to cure this defect was not offered. Yet we are by no means prepared to say we would be justified, in view of the section 6f the Civil Code last above cited, in holding that were this the only objection to the
Judgment reversed.