Crosby v. Thomas

146 S.E. 191, 167 Ga. 548, 1928 Ga. LEXIS 190

• Court: Supreme Court of Georgia
• Decided: December 15, 1928
• Docket: No. 6675
• Status: Published

Opinion

Beck, P. J.

James Crosby and others brought a petition against Ora Thomas, John Thomas, and Amanda Crosby, seeking for cancellation of a deed, partition of land, and injunction to restrain Ora Thomas and John Thomas from working the turpentine timber on any portion of the land described in the petition. The jury returned a verdict “for the defendant.” The plaintiffs made a motion for a new trial as against Ora Thomas and John Thomas. Both of those two defendants were served with the suit. The motion for a new trial was overruled. The plaintiffs filed their bill of exceptions, reciting the trial of the case of "James Crosby et al. vs. Ora Thomas et al.” There is no other mention of a defendant in the bill of exceptions. Service of the bill of exceptions was acknowledged by Wade H. Watson, “attorney for Ora Thomas et al.” There is nothing in the record to show that the attorney thus acknowledging service was the attorney for John Thomas. Held:

No. 6675. December 15, 1928. II. J. Lawrence, for plaintiffs. Wade II. Walson, for defendants.

1. The acknowledgment of service did not evidence service upon John Thomas, it not appearing from the record that the attorney who signed the acknowledgment represented John Thomas in the litigation; and John Thomas is not named in the bill of exceptions. Carter v. American Ginger Ale &c. Co., 125 Ga. 819 (54 S. E. 755); Mutual Building &c. Co. v. Dickinson, 112 Ga. 469 (37 S. E. 713).

2. The last-named defendant was a necessary party to the bill of exceptions, as he is interested in sustaining the verdict and judgment of the court.

3. It follows that the motion to dismiss the writ of error must be sustained. Writ of error dismissed.

All the Justices concur.