Benson v. Shines

Supreme Court of Georgia

Benson v. Shines

33 S.E. 439, 107 Ga. 406, 1899 Ga. LEXIS 86

CourtSupreme Court of Georgia

DecidedApril 25, 1899

StatusPublished

Cited by20 cases

This text of 33 S.E. 439 (Benson v. Shines) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benson v. Shines, 33 S.E. 439, 107 Ga. 406, 1899 Ga. LEXIS 86 (Ga. 1899).

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Opinion

Simmons, C. J.

McCrory employed Benson to repair a house. Benson employed Shines to do the plastering. Shines recorded his lien, and brought suit in the county court to foreclose it against Benson and prayed a judgment against Benson and a special judgment against the property. McCrory was-not made a party to the suit by the petition, nor was process-prayed against him. He appeared, however, in the county court and demurred to the petition, and, his demurrer being overruled, filed a plea to the merits. The county judge-awarded judgment against Benson, the contractor, and a special lien upon the property of McCrory for the amount due Shines.

1. While McCrory was not made a party in the petition and while process was not prayed against him, and while there was no order taken in the county court to make him a party, we-think his appearance in the court by filing a demurrer and a plea to the merits and introducing testimony thereunder made him a party to the action and he was bound by the judgment against his property. A person who is interested in the result-of litigation may voluntarily make himself a party thereto by appearing and pleading, although he is not mentioned as a. party in the petition, which prays no process against him. [407]*407See 2 Black, Judg. § 534; Hukm Chand, Res. Jud. § 71; Brown v. Chaney, 1 Kelly, 412.

2. From the judgment of the county court Benson sought to enter an appeal to the superior court, McCrory being the only security upon the appeal bond. Shines moved to dismiss the appeal, and the judge of the superior court granted the motion and dismissed the appeal, refusing to allow the appellant to amend the bond by giving additional security. We think that the court rightly refused to allow the appellant to give additional surety and rightly dismissed the appeal. In cases of appeal there must be a bond with security, and one already bound by the judgment gives no additional guaranty or security to the appellee. This bond was therefore without security, was a nullity, and could not be amended by giving security. Osborne v. Hughes, 93 Ga. 445; Eufaula etc. Co. v. Plant, 36 Ga. 623; Gordon v. Robertson, 26 Ga. 410.

Judgment affirmed.

All the Justices concurring.

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Simmons, C. J.

McCrory employed Benson to repair a house. Benson employed Shines to do the plastering. Shines recorded his lien, and brought suit in the county court to foreclose it against Benson and prayed a judgment against Benson and a special judgment against the property. McCrory was-not made a party to the suit by the petition, nor was process-prayed against him. He appeared, however, in the county court and demurred to the petition, and, his demurrer being overruled, filed a plea to the merits. The county judge-awarded judgment against Benson, the contractor, and a special lien upon the property of McCrory for the amount due Shines.

1. While McCrory was not made a party in the petition and while process was not prayed against him, and while there was no order taken in the county court to make him a party, we-think his appearance in the court by filing a demurrer and a plea to the merits and introducing testimony thereunder made him a party to the action and he was bound by the judgment against his property. A person who is interested in the result-of litigation may voluntarily make himself a party thereto by appearing and pleading, although he is not mentioned as a. party in the petition, which prays no process against him. [407]*407See 2 Black, Judg. § 534; Hukm Chand, Res. Jud. § 71; Brown v. Chaney, 1 Kelly, 412.

2. From the judgment of the county court Benson sought to enter an appeal to the superior court, McCrory being the only security upon the appeal bond. Shines moved to dismiss the appeal, and the judge of the superior court granted the motion and dismissed the appeal, refusing to allow the appellant to amend the bond by giving additional security. We think that the court rightly refused to allow the appellant to give additional surety and rightly dismissed the appeal. In cases of appeal there must be a bond with security, and one already bound by the judgment gives no additional guaranty or security to the appellee. This bond was therefore without security, was a nullity, and could not be amended by giving security. Osborne v. Hughes, 93 Ga. 445; Eufaula etc. Co. v. Plant, 36 Ga. 623; Gordon v. Robertson, 26 Ga. 410.

Judgment affirmed.

All the Justices concurring.

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33 S.E. 439, 107 Ga. 406, 1899 Ga. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-shines-ga-1899.

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