Rowland v. Fite

• Decision Date: 25 October 1899
• Citation: 34 S.E. 212,110 Ga. 248
• Parties: ROWLAND et al. v. FITE, Judge.
• Court: Georgia Supreme Court

34 S.E. 212

110 Ga. 248

ROWLAND et al.

v.FITE, Judge.

Supreme Court of Georgia.

Oct. 25, 1899.

APPEAL—BILL OF EXCEPTIONS—OMISSION OF NAMES OF PARTIES—AMENDMENT —MANDAMUS.

1. Where a petition filed by several plaintiffs is dismissed on demurrer, and their counsel, at the instance and in behalf of all of them, presents to the trial judge a bill of exceptions assigning error upon the judgment rendered, which bill of exceptions is duly certified, and, together with a transcript of their petition and the demurrer thereto, transmitted to this court, the mere fact that they are not named in the bill of exceptions otherwise than as "R. * * * et al." affords no reason for treating the writ of error as a nullity. Such a defect is not fatal, for the bill of exceptions may, on motion in this court, be amended by the record so as to specifically set forth the names of all the parties in whose behalf the same was sued out. Cameron v. Sheppard, 71 Ga. 781. It follows that there can be no occasion for, and the trial judge is without authority to certify, a second bill of exceptions, presented to him at the instance of the same parties, upon the idea that, not having been properly designated in the first bill of exceptions as the plaintiffs in error, they could not, in this court, successfully urge their claim to such benefits as might be derived therefrom.

2. That a plaintiff in error has inadvertently failed to name in his bill of exceptions all necessary parties defendant, or has negligently omitted to perfect service upon one or more of them, cannot seriously be regarded as presenting any logical reason why he should be permitted to bring a second writ of error designed to shield himself from the consequences of his own neglect. A party who, after a bill of exceptions presented in his behalf to the trial judge has been certified, causes the same to be transmitted to the reviewing court, fully exhausts his right to a writ of error, irrespective of the question whether, because of some fatal defect in his bill of exceptions, or because of an omission to perfect service thereof agreeably to law, thesame may be subject to dismissal in that court. See Rogers v. Roberts. 13 S. E. 962, 88 Ga. 150, and Moore v. Reid (this day decided) 34 S. E. 211.

(Syllabus by the Court.)

Application for mandamus by Charles K. Rowland and others against A. W. Fite, judge, to compel the latter to certify a second bill of exceptions. Denied.

Fouché & Fouché, J. Branham, G. H. Aubrey, and J. L....