Varner v. Varner

• Decision Date: 31 January 1876
• Citation: 55 Ga. 573
• Parties: Joseph L. Varner et al., plaintiffs in error. v. Mary J. Varner,et al., defendants in error.
• Court: Georgia Supreme Court

55 Ga. 573

Joseph L. Varner et al., plaintiffs in error. v. Mary J. Varner, et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Practice in the Supreme Court. Equity. Demurrer. Before Judge Kiddoo. Quitman county. At Chambers. May 8th, 1875.

Reported in the opinion.

H. & I. L. Fielder, for plaintiffs in error.

No appearance for defendant.

Jackson, Judge.

1, 2. This case seems to have gone off below on a demurrer, but what the demurrer was, and on what grounds it rested, we cannot tell. No copy of it is in the bill of exceptions, and while that paper is made to assert that all the facts necessary are in the record, this, the most important fact, indeed the only fact, together with the bill, absolutely necessary to enable us to pass upon the case, is not in the record at all. It is needless to say that we cannot pass upon it and must affirm the judgment below. In a similar case this court pursued that course, and it appears to be the only reasonable one: Mayor and Council of Rome v. Duke, 19 Georgia Reports, 93.

3. The demurrer is the more necessary here because the bill seems to us demurrable upon various grounds. Assuming that it was a general demurrer and went to the whole bill, and was grounded on want of equity, which is the most favorable assumption for the plaintiff in error, and which may be inferred from the fact that the bill was dismissed, we think the remedy of the party complainants ample at law. From their statements it seems the property was always held as theirs and for them; they all appear to be sui juris; they seek no discovery, and we see no reason why they could not recover at law. But we placeour judgment upon the ground that we cannot review a case without the pleadings; that *plaintiff in error must see to it that the pleadings are here, or take the consequences, and that the consequences will always be the affirmance of the judgment of the court below.

Judgment affirmed.