Anderson v. Haas, executor, et al.

Supreme Court of Georgia1925-05-14No. No. 4677

160 Ga. 420

Summary · law.co

Holding. The bill of exceptions is dismissed because essential defendants who were interested in sustaining the judgment below were not made parties to the bill of exceptions and did not waive service as required by law.

O. N. Anderson filed an equitable petition against multiple defendants including H. J. Haas (executor), J. I. Lowry (sheriff), J. H. Prichard, the Provident Life and Trust Co., and W. H. Turner. Only Haas appeared and filed a general demurrer and answer; the demurrer was sustained and the case dismissed. Anderson appealed by bill of exceptions, but named only "W. H. Turner et al." as defendants in error. The attorneys for Haas acknowledged service on the bill of exceptions, but no acknowledgment was obtained from the other defendants.

Anderson moved to amend the bill of exceptions to add the names of other defendants, but there was no showing that these additional defendants had waived service or consented to appellate review as required by law. The court held that when multiple defendants are sued and only some respond, all defendants who have an interest in sustaining the trial judgment must be made parties to the bill of exceptions. The use of "et al." cannot substitute for naming defendants specifically. Because essential parties were omitted and had not waived service, the court lacked jurisdiction to hear the appeal.

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Key issues

Proper designation of defendants in error in bills of exceptions
Whether "et al." sufficiently designates unnamed parties
Service and acknowledgment requirements for all interested defendants
Appellate jurisdiction when essential parties are omitted

Procedural posture

Plaintiff appeals by bill of exceptions from a judgment sustaining a general demurrer and dismissing an equitable petition brought against multiple defendants.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Beck, P. J.

O. N. Anderson brought his equitable petition against H. J. Haas, executor, etc., J. I. Lowry, sheriff, J. H. Prichard, the Provident Life and Trust Co., and W. H. Turner. General and special demurrers were filed by H. J. Haas, executor, etc., who also filed an answer. The general demurrer was sustained and the case dismissed. The other defendants made no appearance. The plaintiff filed a bill of exceptions assigning error on the judgment of the court sustaining the general demurrer. The defendants named in the writ of error are “W. H. Turner et al,” and no defendant in error except W. H. Turner is otherwise designated. Service of the bill of exceptions was acknowledged and all further service waived by Underwood, Pomeroy & Haas, “attorneys for defendant in error;” and it appears from the record that they were attorneys only for H. J. Haas, executor. A motion to dismiss the bill of exceptions was filed in this court upon the ground that the other defendants were necessary and essential parties to the bill of exceptions, and that the bill of exceptions had not been served on any one of the parties not named, nor had they acknowledged service ■ thereon as required by law. Held:

No. 4677.

May 14, 1925.

Equitable petition. Before Judge Humphries. Eulton superior court. November 25, 1924.

G. N. Anderson, for plaintiff.

Underwood, Pomeroy & Haas, for defendants.

1. Where suit is brought against several defendants and only one of them appears and files a defense in the form of a general demurrer and a plea and answer, and the demurrer of this defendant is sustained and the ease dismissed, the other defendants who are interested in sustaining the judgment should be made defendants in error in the bill of exceptions; and if they are not made parties, the bill of exceptions will be dismissed. Civil Code, §§ 6176, 6160; Teasley v. Cordell, 153 Ga. 397 (112 S. E. 287).

(a) Acknowledgment of service in this ease is binding upon Haas, executor, whose attorneys acknowledged service, and upon Turner, who is named in the bill of exceptions.

2. An acknowledgment of service on a bill of exceptions by attorneys relates only to the persons who are actually named, or otherwise sufficiently designated therein as defendants in error, when the acknowledgment is entered; and now, since the act of 1911, to those also whom he represented in the trial court. Edwards v. Wall, 153 Ga. 776 (113 S. E. 190).

3. The abbreviation “et al.,” when used in a bill of exceptions, can not be held to designate any person or persons. Orr v. Webb, 112 Ga. 806 (38 S. E. 98).

4. Counsel for the plaintiff in error filed a motion to amend the bill of exceptions by adding thereto the names of other defendants who were omitted from the original bill of exceptions; but it nowhere. appears that those defendants have waived service and agreed that the case may be heard, as required by the Civil Code, § 6160 (3).

5. Where essential parties are not made parties to the bill of exceptions, this court is without jurisdiction to entertain the same. Applying the foregoing rulings to the facts of this case, the bill of exceptions must be

Dismissed.

All the Justices concur, except Gilbert, J., absent for providential cause.