Westbrook v. James

79 S.E.2d 19, 89 Ga. App. 234, 1953 Ga. App. LEXIS 941

• Court: Court of Appeals of Georgia
• Decided: October 8, 1953
• Docket: 34756
• Status: Published

Opinions

Carlisle, J.

1. It is not only the right but the duty of this court, with or without motion, to inquire into its jurisdiction, and to dismiss a writ of error wherein it appears that jurisdiction is lacking in this court. McKee v. Radcliffe, 88 Ga. App. 574 (76 S. E. 2d 824), and citation.

2. “ ‘All parties who are interested in sustaining the judgment of the court below, or who would be affected by a judgment of reversal, are indispensable parties in thef . . . [appellate court], and must be made parties to the bill of exceptions, or the writ of error will be dismissed. Civil Code (1910), § 6176 [Code § 6-1202]; Emanuel Farm Co. v. Batts, 176 Ga. 552 (168 S. E. 316).’ Malsby v. Shipp, 177 Ga. 54 (1) (169 S. E. 308).” Stewart v. Stewart, 208 Ga. 83 (65 S. E. 2d 151).

3. The payee in a certain promissory note brought an action against the maker, who was never served, and three named sureties. One of the named sureties interposed a plea of non est factum, contending that he had not signed his name in any capacity to the note sued on. The jury returned a verdict against the three named sureties. The surety who had interposed the plea of non est factum made a motion for new trial, which he served upon the plaintiff payee and the other named sureties, and, when the motion was overruled, he sued out a bill of exceptions to this court, in which he names himself as plaintiff in error and names the plaintiff payee as the defendant in error. The other sureties were not made parties to the bill of exceptions, were not served with a copy of the bill of exceptions, and have not acknowledged or waived service of the bill of exceptions and agreed that this court might consider the writ of error on its merits. Those two sureties are interested in sustaining the judgment of the trial court and would be adversely affected by a reversal. Sureties are entitled to contribution as between themselves (Reed v. Liberty National Bank &c. Co., 44 Ga. App. 544, 162 S. E. 154, and citations); and the effect of a reversal of a judgment as to one of three sureties is to increase the amount for which the other two sureties are liable from one-third to one-half the sum of the judgment. The other two named sureties are necessary parties to the present bill of exceptions and, since they have not been properly made parties, the writ of error must be dismissed for want of jurisdiction in this court. Daniel v. Virginia-Carolina Chemical Corp., 50 Ga. App. 275 (177 S. E. 925); Butler v. Kendrick, 172 Ga. 322 (158 S. E. 13); Douglas v. Brooke, 152 Ga. 373 (110 S. E. 16).

Writ of error dismissed.

Gardner, P. J., and Townsend, J., concur.