W.U. Tel. Co. v. Griffith

• Decision Date: 07 August 1900
• Citation: 36 S.E. 859,111 Ga. 551
• Parties: WESTERN UNION TEL. CO. et al. v. GRIFFITH.
• Court: Georgia Supreme Court

36 S.E. 859

111 Ga. 551

WESTERN UNION TEL. CO. et al. v. GRIFFITH.

Supreme Court of Georgia

August 7, 1900

Syllabus by the Court.

1. A bill of exceptions may, in this court, be amended by the record so as to include the names of all necessary or proper parties who might have been joined with the party excepting as plaintiffs in error; aliter as to parties defendant not named in the writ of error, who are unwilling to waive service and consent that the case be heard on its merits. (a) The test to be applied in determining whether one sought to be introduced by amendment could have been joined with the excepting party as a plaintiff in error is, were they on the same side of the controversy in the trial court? for such litigants only as were co-parties below can properly appear before this court as parties plaintiff. (b) All formal parties to the pleadings in the trial court are proper parties to a writ of error, though, since the passage of the practice act of 1881, such of them only as will really be affected by the judgment to be rendered in this court are to be regarded as indispensable parties. (c) In the present case the party brought before this court by amendment to the bill of exceptions was not a necessary defendant in error, but a proper, if not an essential, party plaintiff.

2. As was, in effect, ruled when this case made its first appearance here, the plaintiff's petition set forth a cause of action, and was not open to demurrer on the ground that there was a misjoinder of parties defendant. (a) The plaintiff went even further into detail than was necessary in describing the location of the wires and poles belonging respectively, to the defendant companies, but the petition was defective in that it failed to state with sufficient particularity, at what points the plaintiff expected to prove that they negligently permitted their wires to remain in contact. They were not, however, entitled to notice as to the character or extent of the evidence upon which the plaintiff expected to rely as showing knowledge on their part of facts with which they were alleged to have been acquainted.

3. The petition did not disclose facts showing that the plaintiff was not entitled to recover expenses incurred for medical attention, etc., but was subject to demurrer on the ground that the amount of such expenses was not therein alleged.

Error from city court of Richmond; W. F. Eve, Judge.

Action by L. B. Griffith against the Western Union Telegraph Company and others. From an order overruling a demurrer to the complaint, defendants bring error. Reversed.

J. S. & W. T. Davidson and F. G. Du Biquon, for plaintiffs in error.

C. H Cohen, J. R. Lamar, and Boykin Wright, for defendant in error.

FISH J.

When this case came on to be heard at the October term of this court, counsel for Mrs. Griffith presented a motion to dismiss the writ of error on the ground that the Augusta Railway & Electric Company was a necessary party thereto, but had not been named as such in the bill of exceptions. Thereupon counsel for the telegraph company, without conceding that the railway and electric company was an indispensable party, asked leave to amend the bill of exceptions "from the record in the case," agreeably to the provisions of section 5570 of the Civil Code, by inserting the name of the latter company as a co-plaintiff in error. After argument had as to the right of the telegraph company to make the proposed amendment, we granted it permission so to do, and overruled the motion to dismiss. This was, as we shall undertake now to show, in accord with a rule of practice which has been uniformly adhered to and consistently applied during a period of more than half a century.

1. Under the procedure which obtained both in England and in this country at the time the supreme court of this state was organized, all persons affected by the judgment of a trial court, including securities upon an appeal bond, even though they might not be formal parties to the record, were indispensable parties to a writ of error sued out to review such judgment; and it was accordingly held by this court that a strict compliance with this rule of practice was imperative. Dill v. Jones, 2 Ga. 79; Morris v Wiley, Id. 287. In discussing the necessity and reasonableness of such a requirement, Judge Lumpkin, who delivered the opinion filed in the latter case, pointed out what provision was made for cases in which one only of several parties on the losing side might wish to accept, saying, in this connection (page 289): "One of several parties [cannot] be subjected to the hardship and loss of being deprived of his writ of error because the others refuse to join in it. One may sue out a writ of error in the name of all, and, if the others refuse to join in the prosecution, they may be brought before this court, and severed, at their own request, after which he or they who sued out the writ of error may go on alone. In this manner all inconvenience may be avoided, justice administered, and the harmony and conformity of the record preserved." The right to amend the bill of exceptions by the record, and thus bring before the court necessary plaintiffs not joined in the first instance, was recognized both in the case of Long v. Strickland, 2 Ga. 348, and in that of Carey v. Rice, Id. 408. Such an amendment was allowed in Beall v. Fox's Ex'rs, 4 Ga. 403, it appearing from the record in that case that the parties plaintiff thus sought to be introduced were co-defendants with the plaintiff in error in the court below. Then came the practice act of 1847, which wrought no change in the rules of procedure, save to provide that thereafter it should not be necessary to join in the writ of error securities on appeal or upon injunction bonds, but that such persons only as were formal parties to the pleadings in the lower court should be considered indispensable parties to a writ of error sued out to review a judgment therein rendered. See Carey v. Giles, 10 Ga. 8, wherein this statute was cited and construed. The court in that case declared it necessary not only to include in the writ of error all essential parties thereto, but to observe the equally important requirement that they be therein joined "in the order in which they stand in the record below." As explanatory of what was meant by the phrase just quoted, and as affording an illustration of how this requirement could and should be met, it was said (page 2): "When, therefore, one of two or more defendants against whom a decree has been rendered brings a writ of error to reverse it, it is necessary for him to join his co-defendants as plaintiffs in error, and upon the trial they may unite with him, and assign error against the decree, or they may sever, and be heard in defense of the decree. And, if such plaintiff in error has failed to make his co-defendants parties plaintiff to the writ of error, they may be added by motion, without delay or cost, with the same privilege of assigning errors or severing." Commenting upon the act of 1850, which declared that writs of error could be amended in conformity with the record, without delay or cost and as matter of right, Judge Nisbet remarked (pages 8, 9): "It is useless to talk about the mockery of adding parties here, on motion, without giving them notice to appear. *** So far as these parties are concerned, they have *** very little cause of complaint. The plaintiff in error now before the court could have used their names, and brought them here as parties plaintiff without their consent, and without notice. They are now being made parties upon motion, in a condition very little worse than they would have been in had the plaintiff taken that course. In neither case has the law provided for notice to them, and in both cases they are presumed to know what are the public laws; to know that under the laws they are liable thus to be made parties; and in both cases their rights are the same,--that is, they can assign errors with the primary plaintiff, and co-operate with him in procuring the reversal of the judgment below, or they can sever, and be heard in support of the judgment. It is their privilege to elect." See, also, what was said upon the same line by Bleckley, J., in McNulty v. Pruden, 62 Ga. 138. In the course of his discussion he observed that, if the case "had been brought up by the complainant below, and not by some of the defendants, other rules would apply," for there was a vast difference between introducing proper plaintiffs in error who were not entitled to notice and attempting to add by amendment necessary defendants in error who had not been made parties to or served with the bill of exceptions agreeably to statutory provisions which were imperative. For instance, where this distinction was drawn, and the writ of error was dismissed for want of proper parties defendant in this court, see Barksdale v. Bunkley, 26 Ga. 398; Curey v. Hitch, 57 Ga. 197; Bird v. Harris, 63 Ga. 433; Jordan v. Kelly, Id. 437; Brown v. Wylie, 64 Ga. 435; Maynard v. Hunnewell, 65 Ga. 281; Jowers v. Baker, Id. 611; Haines v. Clary, 66 Ga. 519; and Price v. Lathrop, Id. 247. In the case last cited it appeared that an assignee in bankruptcy, who was a necessary party defendant in error, had not been named as such in the bill of exceptions. With a view to meeting a motion to dismiss the writ of error, the plaintiffs offered to amend by making him a co-party with them, but the court refused to allow this to be done, holding: "Such assignee cannot be made a party plaintiff in error with complainants by an amendment to the bill of exceptions instanter, because he was not on the same side of the litigation in the court below, as was the case in McNulty v. Pruden, 62 Ga. 135, and Carey v. Giles, 10 Ga....