Witham v. Cleaveland

178 S.E. 436, 180 Ga. 180, 1935 Ga. LEXIS 211

• Court: Supreme Court of Georgia
• Decided: January 19, 1935
• Docket: No. 10202
• Status: Published

Opinion

Beck, Presiding Justice.

W. S. Witliam filed his equitable petition against certain named parties. At the trial term the court sustained a general demurrer and certain special demurrers filed by the defendants, and entered an order dismissing the case. To this ruling the plaintiff excepted. The bill of exceptions was served upon certain named attorneys in the case, and there was acknowledgment of service by them in the following language: “Due and legal service of the within bill of exceptions acknowledged. Copy received, and all further service waived.” This was signed by the attorneys referred to as “attorneys for’ defendants in error, except and other than,” and here follow the names of six parties, certain of whom were parties defendant in the court below. There was no service or waiver of legal service upon these, by the acknowledgment of service and waiver which contained the exception stated. Consequently the case falls within the ruling in Clark Milling Co. v. Simmons, 155 Ga. 505 (117 S. E. 437), that “Parties who are interested in sustaining the judgment of the court below are necessary defendants to a bill of exceptions brought by a losing party to reverse such judgment; and where some of such parties have not been served with the bill of exceptions, and have not acknowledged or waived service, the bill of exceptions, upon motion, must be dismissed.” Meadows v. Simmons, 155 Ga. 834 (118 S. E. 425).

A motion was made to amend the bill of exceptions in this case by making the parties on whom service had not been perfected parties defendant in error. This can not be done. Clark Milling Co. v. Simmons, supra. Western Union Tel. Co. v. Griffith, 111 Ga. 551 (36 S. E. 859).

Writ of error dismissed.

All the Justices concur.