Emanuel Farm Company v. Batts et al.

Supreme Court of Georgia1933-02-22No. No. 9072

176 Ga. 552

Summary · law.co

Holding. The writ of error is dismissed because the grantor, who was an indispensable party to the appeal given the jurisdictional issues raised, was not properly served with the bill of exceptions and no valid waiver of service was shown.

Emanuel Farm Company sued to cancel a deed, naming both the original grantor and a corporate grantee as defendants. The corporate grantee filed a plea challenging the court's jurisdiction, arguing that the grantor and plaintiffs had secretly agreed to eliminate their dispute and that the grantor was included only to establish venue in her home county. The grantor was therefore actually aligned with the plaintiffs against the grantee, not a neutral defendant. After the plea was rejected and the plaintiffs won at trial, the grantee sought review by writ of error.

The appellate court found that because the grantee had raised the jurisdictional issue and alleged facts showing the grantor was genuinely adverse to the grantee's interests, the grantor became an indispensable party whose participation was required in the bill of exceptions. However, the grantor was never served with the bill of exceptions and did not acknowledge service or waive it. The plaintiff in error attempted to amend the bill to add the grantor after the fact, but this could not be done without proper service.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a defendant sued for purposes of establishing jurisdiction is an indispensable party to a bill of exceptions
Service requirements for parties to a bill of exceptions
Effect of a plea to jurisdiction on the status of nominal parties

Procedural posture

A writ of error was filed challenging a trial court judgment for the plaintiffs in a deed-cancellation action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, J.

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; Edwards v. Wall, 153 Ga. 776 (113 S. E. 190).

2. Where a suit against the grantor and a remote grantee (a corporation), to cancel a deed, was filed in the county of the residence of the grantor, ■and such grantee, whose residence was in a different county, filed a plea to the jurisdiction, alleging in effect that before the filing of the suit the grantor and the plaintiffs entered into an agreement whereby they eliminated any controversy as between themselves, and the grantor had undertaken to aid and abet the plaintiffs to obtain a recovery against the grantee for the benefit of the grantor and the plaintiffs, and was to be made a party defendant merely for the purpose of fixing jurisdiction in the county of her residence, the plea shows upon its face that the grantor would be interested in sustaining a judgment in favor of the plaintiffs; and where, after the plea was so stricken, the case proceeded to trial and resulted in a verdict in favor of the plaintiffs, and the grantee excepted to the overruling of its motion for a new trial, and in the bill of exceptions assigned error also upon the striking of such plea to the jurisdiction, the grantor was an essential party to the bill of exceptions. Teasley v. Cordell, 153 Ga. 397 (2) (112 S. E. 287); Butler v. Kendrick, 172 Ga. 322 (158 S. E. 13).

3. The grantee having injected into the case an issue as to jurisdiction, and having alleged facts to show that the grantor was not a real party de fendant, but was in fact an adversary of the grantee, the ease is distinguished by its facts from those cases in which it has been held that a defendant against whom a verdict has been returned and whose motion for a new trial has been overruled is not required to make his codefendants parties to a bill of exceptions to review -the judgment refusing a new trial. Turner v. Newell, 129 Ga. 89 (58 S. E. 657) ; Durrenee v. Cowart, 160 Ga. 671 (2) (129 S. E. 26).

No. 9072.

February 22, 1933.

Rehearing denied March 4, 1933.

A. 8. Bradley, A. 8. Bradley Jr., and Phillips & Abbot, for plaintiff in error.

M. G. Barwiclc, contra.

4. The motion of the plaintiff in error to allow the grantor now to be made a party to the bill of exceptions, by amendment, must be denied, for the reason that no service of the bill of exceptions was effected upon this party, and it does not appear from the record that she is bound by the acknowledgment of service made by counsel of record in the case or that she has waived service and agreed that the case may be heard. Civil Code (1910), §§ 6160, 6184, 6188; Park’s Code (1914), §§ 6164(a), 6164(b); Western Union Telegraph Co. v. Griffith, 111 Ga. 551 (36 S. E. 859) ; Anderson v. Haas, 160 Ga. 420 (2) (128 S. E. 178).

5. Under the facts stated above, the motion to dismiss must be sustained.

Writ of error dismissed.

All the Justices concur.