Benson v. Lewis , 176 Ga. 20 ( 1932 )

Gilbert, J.

1. All persons who are interested in sustaining the judgment of the court below are necessary parties in the Supreme Court, and must be made parties defendant to the bill of exceptions and served with a copy thereof. Tillman v. Davis, 147 Ga. 206 (93 S. E. 201) ; Woolard v. Corcoran, 148 Ga. 299, 300 (96 S. E. 564) ; Teasley v. Cordell, 153 Ga. 397 (112 S. E. 287); Edwards v. Wall, 153 Ga. 776 (113 S. E. 190) ; Greeson v. Taylor, 160 Ga. 392 (128 S. E. 177) ; Anderson v. Haas, 160 Ga. 420 (128 S. E. 178); Bond v. Stephens, 164 Ga. 30 (137 S. E. 377) ; Rowe v. Mobley, 166 Ga. 726 (144 S. E. 211) ; Swain v. Wommock, 168 Ga. 101 (146 S. E. 761) ; Civil Code (1910), §§ 6160, 6176.

2. The general demurrer filed by one of the defendants went to the substance and merit of the entire petition, and challenged the right of the petitioners to any relief in a court of equity. That being true, the demurrers enured to the benefit of all of the defendants, although some of them may have been liable. Tillman v. Davis, supra; Tate v. Goode, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310); McKinney v. Powell, 149 Ga. 422, 430 (100 S. E. 375); Benson v. Andrews, 149 Ga. 758, 762 (102 S. E. 148).

3. Where a suit is brought against several defendants, and only one of them appears and files a defense in the form of a general demurrer, and the demurrer of this defendant is sustained and the case dismissed, the other defendants are interested in sustaining the judgment and should be made defendants in error in the bill of exceptions and served with a copy thereof; and if this is not done, the bill of exceptions will be dismissed. An inspection of the record and bill of exceptions in the present case discloses that not all of the parties who are interested in sustaining the judgment of the court below are made parties to and served with a copy of the bill of exceptions. Therefore, on motion, the writ of error must be dismissed. Writ of error dismissed.

All the Justices concur.