Sistrunk v. Davis

120 S.E. 675, 31 Ga. App. 397, 1923 Ga. App. LEXIS 960

• Court: Court of Appeals of Georgia
• Decided: December 10, 1923
• Docket: 14312
• Status: Published

Opinion

Bell, J.

Where an action is instituted seeking substantial relief against several defendants, and one of them files a demurrer which goes to the substance of the whole petition and challenges the plaintiff’s right to any relief, and the demurrer is sustained, the resulting dismissal of the petition enures to the benefit of all the defendants, and they become interested in sustaining the judgment. The same is true as to a later judgment refusing a motion of the plaintiff to reinstate the suit. Where in such a case the plaintiff desires to except to the court’s rulings in dismissing the action and in thereafter refusing to reinstate it, it is essential that he make all of the defendants in the trial court defendants in error and serve them with a copy of the bill of exceptions. A failure to do so will require a dismissal of the writ of error. Civil Code (1910), § 6176; Tate v. Good, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310); United States Leather Co. v. First National Bank, 107 Ga. 263 (33 S. E. 31); Davis v. Walters, 140 Ga. 229 (78 S. E. 838); Humphrey v. Powell, 145 Ga. 458 (1) (89 S. E. 427); Tillman v. Davis, 147 Ga. 206 (1) (93 S. E. 201); Woolard v. Corcoran, 148 Ga. 299 (96 S. E. 564); Edwards v. Wall, 153 Ga. 776 (113 S. E. 190). Only one of the defendants in the court below having been made a party to the plaintiff’s bill of exceptions, the motion of that defendant to dismiss the bill of exceptions for the want of necessary parties must be sustained.

Decided December 10, 1923.

Action for libel; from Fulton superior court—Judge Bell. January 20, 1923.

J. F. Sistrunlc, pro se. Branch & Howard, Bond Almand, for defendant.

Writ of error dismissed.

Jenkins, P. J., and Stephens, J., concur.