Malsby v. Shipp

• Decision Date: 11 May 1933
• Docket Number: NO. 9328.,9328.
• Citation: 169 S.E. 308,177 Ga. 54
• Parties: MALSBY. v. SHIPP et al.
• Court: Georgia Supreme Court

177 Ga. 54

169 S.E. 308

MALSBY.

v.SHIPP et al.

NO. 9328.

Supreme Court of Georgia.

May 11, '1933.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by Mrs. A. H. Malsby against G. G. Shipp and others. General demurrer filed by one of defendants was sustained, and petition was dismissed as to him, and plaintiff brings error.

Writ of error dismissed.

A. R. Dorsey, of Atlanta, for plaintiff in error.

Augustine Sams, of Atlanta, for defendants In error.

Syllabus Opinion by the Court.

BELL, Justice.

1. All parties who are interested in sustaining the judgment of the court below, or who would be affected by a judgment of reversal, are indispensable parties in the Supreme Court, and must be made parties to the bill of exceptions, or the writ of error will be dismissed. Civil Code 1910, § 6176; Emanuel Farms Co. v. Batts, 176 Ga. 552, 168 S. E. 316.

2. Where an action is instituted seeking substantial relief against several defendants, and one of them files a demurrer which goes to the substance of the whole petition and challenges the plaintiff's right to any relief, a judgment sustaining such demurrer "inures to the benefit of all the defendants, and they become interested in sustaining the judgment; and if the plaintiff desires to except to the ruling, it is essential that he make all of the defendants in the trial court defendants in error, and serve them with a copy of the bill of exceptions, and a failure to do so will require a dismissal of the writ of error." Tillman v. Davis, 147 Ga. 206, 93 S. E. 201.

3. Where it appears from the record that parlies to the litigation in the court below who are directly interested in having the judgment excepted to sustained by this court have not been made parties to the bill of exceptions, "this court is without jurisdiction to entertain the bill of exceptions, and will dismiss the writ of error of its own motion, " where no motion to dismiss is made by the defendant in error. Teasley v. Cordell, 153 Ga. 397, 400, 112 S. E. 287, 289; Tillman v. Groover, 25 Ga. App. 118, 102 S. E. 879.

4. In the present case the plaintiff sought to obtain a money judgment and also an injunction against one of the defendants, called the main defendant, and prayed for injunction and other relief against other defendants; but it appeared from the allegations that the plaintiff could in no event be entitled to such injunctive relief against the other defendants, unless he had a cause of...