Tate v. Goode , 135 Ga. 738 ( 1911 )

Evans, P. J.

(After stating the foregoing facts.)

The only matter passed on by this court was the correctness of the judgment overruling the demurrer of the excepting defendants. When that judgment was found to be erroneous, the subsequent proceedings, at least as against the demurrants, were nugatory and presented no question for adjudication. Jones v. Hurst, 91 Ga. 338 (17 S. E. 635). It will be observed from the statement of facts that the grounds of the demurrer went to the right of the plaintiff to maintain his cause of action, and were common to all the defendants. The trial court was called upon to'adjudicate, and did erroneously adjudicate, that the plaintiff had such title as could be asserted against all the defendants as residuary devisees under the will of the common propositus. If the trial court in the first instance had sustained the demurrer, that judgment would have inured to the benefit of all the defendants; because it is a general rule that if one defendant pleads matter whereby it appears that the plaintiff has no cause of action against any defendant, and obtains a verdict, the plaintiff is not entitled to 'judgment against a defendant who has defaulted. Biggs v. Benger and Greenfield, 2 Ld. Raymond, 1372; Marler v. Ayliffe, Cro. Jac. 134; State v. Gibson, 21 Ark. 140; Bowman v. Noyes, 12 N. H. 302; Adderton v. Collier, 32 Mo. 507; Morrison v. Stoner, 7 Ia. 493. When the trial court erroneously overrules a demurrer interposed by some of the defendants, which goes to the very vitals of the plaintiff’s case, and the parties excepting and those not excepting stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment, the judgment of reversal will operate in favor of all the defendants. Willie v. Thomas, 22 Tex. 175; Walker v. Page, 21 Gratt. 636; Tod v. Stambaugh, 37 Ohio St. 469. The adjudication by this court was that under the allegations of the petition the plaintiff had no other title than that of a tenant per autre vie, — that is, for the life of the surviving devisee A, and was not entitled to maintain the action against the residuary devisees of the testator, whom the defendants were alleged to be. 132 Ga. 256. So that the judgment of this court operates as a .reversal of the decree as to all the parties to the case.

We have found it necessary to actually decide the controlling point in the case on its merits, as a premise to the point actually up for decision, viz., that the writ of error is premature because no final judgment has been rendered. When the remitter was made the judgment of the court, it was in order for the petition to be dismissed, unless its defects, as pointed out in the decision of this conrt, were cnred by appropriate amendment. No amendment has been made, so far as this record discloses. Unless the petition be amended, the petition must be dismissed; if amended, then the case will still pend. If the amendment will suffice to hold thé petition in court, necessarily it is a material amendment which will open a default. Calhoun v. Mosley, 114 Ga. 641 (40 S. E. 714); Lippman v. Æna Ins. Co., 120 Ga. 247 (47 S. E. 593). The interlocutory character of the judgment complained of, as well as the uncertain status of the plaintiffs petition, furnishes no basis for a writ of error. Writ of error dismissed.

All the Justices concur.