Swift v. Swift

11 S.E.2d 660, 191 Ga. 129, 1940 Ga. LEXIS 611

• Court: Supreme Court of Georgia
• Decided: November 12, 1940
• Docket: 13487, 13488.
• Status: Published

Opinion

Jenkins, Justice.

The direct bill of exceptions complains of the order of the trial judge finding against the traverse of an entry of filing by the deputy clerk on a motion for new trial, and dismissing the motion for new trial on the ground that, in accordance with the entry of the deputy clerk, the motion had been filed too late. The clerk was not made a party to the traverse, but the deputy clerk was made a formal party thereto by order of the judge, after which the deputy appeared and filed his answer to the traverse. The plaintiff in error in his direct bill ot exceptions names as defendants in error only the opposite parties to the litigation, without including the deputy clerk, and no service or acknowledgment of service upon that officer appears in the record. A motion to dismiss the writ of error is made on the ground that the deputy clerk, as a party in the trial of the traverse, was a necessary party to the bill of exceptions, and is not so named. Held, that the deputy clerk, who made the entry of filing attacked by the traverse, was not merely a proper party to the traverse proceeding, but was a necessary one. Southern States Phosphate Co. v. Clark, 149 Ga. 647 (1, b) (101 S. E. 536) ; Bell v. New Orleans &c. R. Co., 2 Ga. App. 812 (2, b), 817 (59 S. E. 102); Cochran v. Whitworth, 21 Ga. App. 406 (3) (94 S. E. 609) ; Brinson v. Ga. R. Co., 45 Ga. App. 459, 461, 462 (165 S. E. 321) ; Code, §§ 81-214, 24-2713. Being a necessary party in the trial of the traverse, and having been actually made a party in that proceeding, it was essential that he be named as a party defendant in error in a bill of exceptions taken from a ruling finding on the traverse in favor of his entry. Accordingly the motion to dismiss the direct bill of exceptions ■must be granted. Writs of error dismissed. All the Justices concur.