Tillman v. Davis

93 S.E. 201, 147 Ga. 206, 1917 Ga. LEXIS 124

• Court: Supreme Court of Georgia
• Decided: August 17, 1917
• Status: Published

Opinion

Fish, O. J.

1. Where an action is instituted, seeking substantial relief against several defendants, and some of them file a demurrer which goes to the substance of the whole petition and challenges the plaintiff’s right to any relief, such demurrer enures to the benefit of all the defendants. Tate v. Goode, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310). Where the judge sustains such demurrer and enters an order dismissing the whole case, such dismissal enures to the benefit of all the defendants, and they become interested in sustaining the judgment; and if the plaintiff desires to except to the ruling, 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, and a failure to do so -will require a dismissal of the writ of error. United States Leather Co. v. First National Bank of Gainesville, 107 Ga. 263 (33 S. E. 31); Davis v. Walters, 140 Ga. 229 (78 S. E. 838).

2. Applying the rulings made in the foregoing headnote to the facts of this ease, the motion to dismiss' the writ of error must be sustained.

Writ of error dismissed.

All. the Justices concur. Petition; from Pierce superior court. Motion to dismiss. E. II. Williams, for plaintiff. Wilson & Bennett and J. B. Wallcer, for defendants.