Kahn v. Hollis

• Decision Date: 22 December 1905
• Citation: 53 S.E. 95,124 Ga. 537
• Parties: KAHN v. HOLLIS et al.
• Court: Georgia Supreme Court

53 S.E. 95

124 Ga. 537

KAHN v. HOLLIS et al.

Supreme Court of Georgia

December 22, 1905

Syllabus by the Court.

When an action was brought against a number of persons as beneficiaries of a trust, and the relief prayed for was such that all the beneficiaries were interested therein, and the case was in default as to all except three of the defendants who filed a demurrer to the petition, and upon a hearing the court sustained the demurrer and dismissed the entire case all of the defendants were necessary parties to a bill of exceptions complaining of the judgment sustaining the demurrer, and dismissing the entire case.

The return of service of a bill of exceptions must be entered upon or annexed to the original bill of exceptions, and where such a return is made upon a separate paper, which is not annexed to the bill of exceptions prior to the time that it is transmitted to the clerk of the Supreme Court, the judge of the trial court, while the case is pending in the Supreme Court, has no authority to pass an order declaring such entry of service to be a part of the record in the case and ordering the same to be transmitted to the clerk of the Supreme Court. Turner v. Collins, 8 Ga. 252; Coleman v. Johnson, 45 Ga. 317.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by Valentine Kahn against Paul Hollis and others. Judgment for defendants, and plaintiff brings error. Dismissed.

Crump & Travis and M. W. Harris, for plaintiff in error.

Jesse C. Harris and Minter, Wimberly, Hall & Wimberly, for defendants in error.

COBB P.J.

A motion to dismiss the bill of exceptions in this case was made by three of the defendants, Paul Hollis, T. G. Hollis and Claude Damour, upon the ground that all of the parties had not been served. By reference to the foregoing statement of facts it will be seen that this motion must be sustained. All the parties defendant, with the exception of Rice, were joint owners of the realty which was the basis of the suit. The judgment of the court below dismissing the entire case is a judgment which these parties are all interested in sustaining. They are necessary parties to the bill of exceptions, and each should have been served. White v. Bleckley, 105 Ga. 173, 31 S.E. 147; Civ. Code 1895, § 5562; Chason v. Anderson. 119 Ga. 496, 46 S.E. 629; Augusta Bank v. Merchants' Bank, 104 Ga. 857, 31 S.E. 433, and citations.

Writ of error dismissed. All the...