Trulock v. Parker

89 S.E.2d 174, 211 Ga. 795, 1955 Ga. LEXIS 466

• Court: Supreme Court of Georgia
• Decided: September 12, 1955
• Docket: 19015
• Status: Published

Opinion

Candler, Justice.

This litigation was instituted by three lower riparian landowners to enjoin the defendant from diverting the waters from the regular channel of a non-navigable stream, and for damages. By amendment and without objection, Amos Bell, another lower riparian owner, was made a party plaintiff and he also prayed for injunctive relief and damages. At an interlocutory hearing the judge overruled the general demurrers to the petition as amended and granted a temporary injunction. The defendant excepted. The plaintiff Amos Bell is not named as a party in the bill of exceptions. Held:

1. It is always the duty of this court, with or without motion, to inquire into its jurisdiction and to dismiss a writ of' error where jurisdiction is lacking. Brockett v. Maxwell, 200 Ga. 213 (36 S. E. 2d 638), and citations.

2. All persons who are interested in sustaining the judgment excepted to, or who would be adversely affected by a judgment reversing it, are indispensable parties and must be made parties in the bill of exceptions, or the writ of error will be dismissed for want of jurisdiction. Code § 6-1202; Whitehead, v. Hogan Bros. Lumber Co., 205 Ga. 890 (55 S. E. 2d 371), and citations.

Argued July 12, 1955 Decided September 12, 1955. Conger & Conger, for plaintiff in error. Custer & Kirbo, Cain & Smith, contra.

3. In the instant case it affirmatively appeal's from the record that Amos Bell, who is not named as a party in the bill of exceptions, is interested in sustaining the judgment excepted to and would be adversely affected by a judgment reversing it. Consequently, this court is for that reason without jurisdiction and will dismiss the writ of error on its own motion.

Writ of error dismissed.

All the Justices concur.