Daniels v. Avery, (No. 6340.)

• Decision Date: 15 September 1928
• Docket Number: (No. 6340.)
• Citation: 145 S.E. 45,167 Ga. 54
• Parties: DANIELS. v. AVERY et al.
• Court: Georgia Supreme Court

167 Ga. 54

145 S.E. 45

DANIELS.

v.AVERY et al.

(No. 6340.)

Supreme Court of Georgia.

Sept. 15, 1928.

(Syllabus by the Court.)

Error from Superior Court, Early County; M. J. Yeomans, Judge.

Ejectment by Maggie Avery and others, by their next friend, R. C. Tooke, against T. F. Daniels and another. Judgment for plaintiffs, motion by defendant named for new trial overruled, and defendant brings error. Affirmed.

W. I. Geer, of Colquitt, for plaintiff in error.

J. M. Cowart, of Arlington, and A. H. Gray, of Blakely, for defendants in error.

BECK, P. J. John Doe, on the demise of Maggie Avery, Leila Price, Julian Tooke, and Jimmie Tooke, minors, by their next friend, R. C. Tooke, brought ejectment against Richard Roe, casual ejector, and T. F. Daniels. In an amendment subsequently filed, a demise was laid in the names of Maggie Avery, Leila Price, Kate Betton, Julian Tooke, and Jimmie Tooke. The defendant filed an answer, in which he denied that the plaintiffs had title or interest in the land, and alleged that plaintiffs had no valid deeds to the same. In an amendment subsequently filed the defendant alleged that he was an heir at law of Elizabeth Daniels, who executed a deed to the land sued for, which purports to convey the same to the plaintiffs; that at the time of the execution of the deed Elizabeth Daniels was mentally incapable of making a deed; that she was non compos mentis, and had been for several years prior to the execution of the conveyance; and that no consideration passed from the grantees named in the deed to the grantor. The defendant prayed that the deed be delivered up and canceled. Upon the trial of the case the jury returned a verdict in favor of the plaintiffs. Whereupon the defendant made a motion for new trial, which was overruled.

1. A motion was made to dismiss the bill of exceptions in this case, upon the following grounds:

"(1) Because it appears from the record in said case that Maggie Avery, Leila Price, Kate Betton, Julian Tooke, and Jimmie Tooke were plaintiffs in said case in the court below, and recovered jointly a judgment in their favor against the defendant, the present plaintiff in error, T. F. Daniels. (2) One of the plaintiffs in the court below, to wit, Kate Betton, who is a material party to the cause, was not made a party to the bill of exceptions, has not been named as a party in the bill of exceptions, as required by law, and has not been served with the said bill of exceptions, nor waived service."

Counsel for plaintiff in error, moves in this court to make Kate Betton a party defendant in the court, as she was a party plaintiff in the court below, and was represented in the court below by counsel of record in this case, and that counsel of record acknowledge service upon the bill of exceptions, "and did not distinctly and especially state that it was not to be construed as waiving some particular defect." We are of the opinion that the motion to make Kate Betton a party defendant to the bill of exceptions should be allowed. She was one of the parties in whose name the demise was laid. She was a party plaintiff jointly with the other parties. The only counsel for plaintiffs in the case was the counsel who acknowledged service of the bill of exceptions, and he acknowledged service in the following words:

"Due and legal service of the within bill of exceptions acknowledged; copy and all other and further notice and service waived. [Signed] J. M. Cowart, A. H. Gray, Attorneys for Maggie Avery, Leila Price, Jimmie Tooke, and Julian Tooke, Defendants in Error."

A. H. Gray and J. M. Cowart were the only attorneys signing the petition in the case....