Inman v. Estes

• Decision Date: 27 May 1898
• Citation: 30 S.E. 800,104 Ga. 645
• Parties: INMAN et al. v. ESTES et al. WAXELBAUM et al. v. SAME.
• Court: Georgia Supreme Court

30 S.E. 800

104 Ga. 645

INMAN et al.

v.ESTES et al.

WAXELBAUM et al.

v.SAME.

Supreme Court of Georgia.

May 27, 1898.

Whit of Error—Prematurity—Parties —Acknowledgment of Service.

1. If, pending a motion for a new trial, the movant therein files and brings to this court a bill of exceptions alleging that the judgment complained of in such motion was erroneous, because the same did not conform to the verdict, the writ of error thus sued out will be dismissed as premature.

2. Persons who, as parties to a motion for a new trial, are interested in sustaining the judgment complained of therein, are essential parties to a bill of exceptions assigning error upon the overruling of such motion; and, if such parties are not duly served, the writ of error will be dismissed.

3. Where a bill of exceptions designates as defendants in error a named person "et al., " and service thereof is acknowledged by attorneys at law who sign as counsel for the defendant in error, such acknowledgment covers only the person specifically named, and will not be held as an acknowledgment of service for any other person.

(Syllabus by the Court.)

Error from superior court, Talbot county; W. B. Butt, Judge.

Separate petitions by Inman, Smith & Co., and by Waxelbaum & Co., and others, against George H. Estes and another. The causes were consolidated. There was a judgment for defendants, and an order denying a new trial, and plaintiffs bring error. Dismissed.

Goetchins & Chappell and Dasher, Park & Gerdine, for plaintiffs in error.

Brannan, Hatcher & Martin, Persons & Son, and J. H. McGehee, for defendants in error.

LUMPKIN, P. J. In November, 1896, an equitable petition was filed by Inman, Smith & Co., and another by Waxelbaum & Co. and others, against George H. Estes and the People's Bank of Talbotton. Subsequently the following order was passed: "By consent of all parties, it is ordered that the two above-stated cases now pending be consolidated and become one case, and that all parties now or hereafter made to either of said cases become and are parties to both, and that said causes proceed to final hearing and disposition as one case." Afterwards, Findley Greene was made a party defendant, and the case was submitted to a jury, who, in response to questions propounded by the court, made special findings of the facts at issue. Upon this verdict a judgment adverse to the plaintiffs was entered. They filed a motion for a new trial, and, while the same was pending and undisposed of, brought to this court a bill of exceptions alleging that the judgment entered as above stated was erroneous, because the same did not conform to the verdict. Thereafter the motion for a new trial was heard and overruled, and the plaintiffs sued out and brought to this court a second bill of exceptions, alleging that the court erred in refusing to grant a new trial. It is proper to state here that the People's Bank of Talbotton and Findley Greene were directly interested in sustaining the judgment entered by the court.

Separate motions were made here to dismiss these writs of error. The main ground of each motion was that the plaintiffs in error had failed to make parties defendant in error, or serve, the bank and Greene. In our judgment, both motions were well taken, and there is an additional ground which prevents this court from considering the first bill of exceptions, viz. it was prematurely sued out. In the case of Anderson v. Green, which was first here at the January term, 1872, it appeared that a verdict in favor of the complainant had been returned, and that the defendant had filed a motion for a new trial. Upon this verdict the court entered a decree...