Thomas v. Winter

21 Ga. 358

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 72
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

In this case the only question is, whether the Court below has the right to hear and determine the demurrer of two of defendants before the other defendants had been served with the bill.

We think that the Court had this right. Parties defendants may sever in equity, and each may put in a separate or a different defence. If so, it would seem to follow as a matter of course, that separate defences may be determined separately, at least if they are such that their determination is a matter for the Court and not for the jury.

■ Such separate determination cannot, in general, affect the fights of any of the other parties in the case, whether parties plaintiff or parties defendant.

We say, therefore, that the Court ought to have determined the demurrer. As to what the judgment on the demurrer should have been, we say nothing.

Judgment reversed.