Berryman v. Haden
| Decision Date | 25 February 1901 |
| Citation | 112 Ga. 752,38 S.E. 53 |
| Court | Georgia Supreme Court |
| Parties | BERRYMAN . v. HADEN et al. |
EQUITY—PARTIES—APPEALABLE ORDERS-RECORD.
1. Where, during the pendency of an equitable petition, an order was passed declaring that a named person be made a party defendant to the case, and directing that she show cause why the relief prayed for by the plaintiff should not be granted, and, further, that she be served with a copy of that order and of the petition, and where the directions of the order as to service were duly complied with, held, that there was no merit in an objection filed by the person named in the order, presenting the point that she had not been duly made a party, the objection resting solely on the ground that no formal process had been issued by the clerk and served upon her.
2. While it is the right of a party to bring here for review any case, though the same be still pending in the trial court, if "the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause" as to him, it is not the right of such party to bring here for decision other rulings made in the case by the trial judge.
3. An order in a partition case, adjudicating what are the respective interests of the parties in and to the realty involved, and appointing partitioners to divide the same and make return to the court, is interlocutory, and does not finally dispose of the case.
4. This court will not allow a party bringing a case here before it had gone to final judgment in the trial court to file in that court, as exceptions pendente lite, the official copy of the original bill of exceptions, when a due regard to the settled rules of practice would have enabled such party to preserve for final review all exceptions to interlocutory rulings, by filing, at the proper time, exceptions pendente lite in the court below.
(Syllabus by the Court)
Error from superior court, Pulton county; J. H. Lumpkin, Judge.
Suit by W. W. Haden and others against Mary Berryman. Judgment for plaintiffs, and defendant brings error. Affirmed.
Simmons & Pettigrew, for plaintiff in error.
W. W. Haden, Simmons & Corrigan and R. O. Lovett, for defendants in error.
FISH, J. Haden brought an equitable petition against Cook and Sammons for the partition of certain realty, and against certain named creditors of Cook and the sheriff of the county for an injunction restraining them, pending the application for partition, from levying upon Cook's undivided interest in the land. He alleged that Corrigan claimed a certain portion of the land, but denied that Corrigan had any interest in it. He further alleged that Mary Berryman, from whom he, as attorney at law for Cook and Sammons, had recovered the realty (and as a result of which suit he acquired his own interest in it), was in possession of the same, without any right or authority whatever, and was wholly insolvent, and prayed for the appointment of a receiver to take possession of the land, rent it out, collect the rents, and pay out the proceeds under orders of the court. Except as to Mary Berryman, heprayed that all the persons named should be made parties defendant to the petition. The judge ordered the petition filed, that each of the defendants be served with a copy thereof, and that they should show cause before him, on a day named, why the relief prayed for should not be granted, and that until the interlocutory hearing the parties against whom injunction was sought should be enjoined as prayed for. Upon the filing of the petition, the clerk of the court attached thereto a process directed to all the persons whom the plaintiff prayed should be made parties defendant, and they were all either duly served or acknowledged service. Mary Berryman, through her attorneys at law, acknowledged service of the petition, waiving a copy thereof, and filed a demurrer to the same, upon the ground that she was no legal or proper party thereto, and could not be bound by any judgment rendered in the proceeding. Subject to this demurrer, she filed an answer. The court did not pass upon this demurrer. The plaintiff amended his petition, and alleged that he had ascertained since the filing of the same that Mary Berryman had filed of record a quitclaim deed from the defendant Sammons to her, covering his interest in the land, and prayed that she be made a party defendant, but stated that no process was prayed against her, as she had acknowledged service of the petition. Whereupon the court passed an order which, after stating the case, was in the following language: "It appearing to the court that Mary Berryman has filed for record a deed from L. M. Sammons to his interest in the land described in the petition in the above-stated case, and that the said Mary Berryman is a necessary party to this suit, it is now ordered and decreed that Mary Berryman be, and she hereby is, made a party defendant to said suit; and it is further ordered and decreed that said Mary Berryman be served with a copy of this order, and that she show cause before me on Saturday, December 9, 1899, at the court house of Pulton county, in superior court room, at 9 o'clock a. m, or so soon thereafter as counsel can be heard, why the relief prayed for should not be granted as prayed for." Service of this order was acknowledged by Mary Berryman. At the subsequent interlocutory hearing, she filed a "demurrer" to this order, upon the grounds (1) that it "is not sufficiently broad In its terms to legally make her a party defendant in said case; (2) that no process is prayed for against her; (3) that, in order for this defendant to be legally made a party defendant in said case, the plaintiff must have prayed for process against her, and must have procured the same to be issued and served upon her, or must have had the original process so amended as to make her a party defendant in said case, and have made it returnable to some succeeding term of the court; in other words, the plaintiff could not simply take an order making her a party defendant to the original suit, and have her served with a copy of the original suit, and with the order, and thereby make her a party legally to said suit." She also adopted as a part of this "demurrer" her previous demurrer, and prayed that it should be so considered, and, subject to the demurrer, adopted her previous answer as her answer to the amended petition. At the interlocutory hearing, she also "objected to proceeding, on the ground that no process had been prayed against her or served on her, and no hearing could be had as to her until the next term of court, and that there should be a jury trial before further proceedings." The court overruled the "demurrer" and this objection and proceeded to hear evidence, "in the manner usual on applications for injunctions, receivers, or like applications, " and then rendered a decree, in which "all parties to the record" were "enjoined from selling the land described in the petition, or any part thereof or interest therein, under any execution against Sammons & Cook, or either of them, " until the final hearing of the case on the further order of the court, and five partitioners were appointed to make partition of the land, according to specific directions contained in the decree. To this judgment Mary Berryman excepted. In her bill of exceptions she alleges: ...
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