Mattox v. Barry , 136 Ga. 183 ( 1911 )

Atkinson, J.

1. The assignments of error do not afford grounds for reversing the judgment at the instance of the sheriff, the only plaintiff in error who filed exceptions to the ruling of the court. The case was a money-rule proceeding 'against the sheriff, and by consent was tried by the judge upon the pleadings and upon an agreed statement of facts. According to his answer and only prayer, the sheriff had no interest further than to obtain a judgment protecting him in the matter of paying out the fund admitted to be in his hands, and invoked no judgment other than direction from the court on that subject. In money-rule cases where a fund is in the hands of the sheriff and is contended for by different persons, ordinarily all persons having claims to the fund will be bound by the. judgment if they have notice of the proceedings and are afforded an opportunity to assert their claims. Foster v. Rutherford, 20 Ga. 668; Berrie v. Smith, 97 Ga. 782 (25 S. E. 757). The holders of the justice-court fi. fas. put them in the hands of the sheriff, and in effect notified him to satisfy them out of the fund in controversy, thus in part bringing about the necessity for the sheriff to ask direction 'from the court. After the rule was issued against the sheriff, the attorneys at law for the holders of the justice-court fi. fas. acknowledged service thereof, and entered into the consent for the trial by the judge and the agreement as to the facts, thereby participating in the trial of the case. Under these circumstances the holders of the justice-court fi. fas., as well as the plaintiff in attachment, would be bound by any judgment rendered in the case. With all of the parties at interest, so far as the record discloses, participating in the trial, a judgment was rendered which in effect gave the sheriff full direction as to the application of the fund, and afforded him complete protection in paying it out as ordered. The judgment was responsive to his only prayer, afforded him all that he sought, and he was no party to ask that it be set aside. In this connection' see Western Union Telegraph Co. v. Griffith, 111 Ga. 558 (36 S. E. 859); Orr v. Webb, 112 Ga. 810 (38 S. E. 98).

2. After the case was brought to the Supreme Court by the bill of exceptions filed by the sheriff, the holders of the justice-court fi. fas. sought to have it amended by having their names inserted as parties plaintiff in error, and to have the judgment of the trial court reversed in their interest. As indicated in the first division, if the judgment should-be reversed at all, it would not be in the interest of the sheriff, as he had no interest in having it reversed. It is not apparent why they should be thus allowed to proceed. If they were dissatisfied with the judgment of the trial court, they should have filed appropriate exceptions within the time allowed by law. Several reasons exist why, after omitting to do so, they should not, after the expiration of the time for filing exceptions, be heard as to their separate interests in the Supreme Court merely by annexing themselves, under the law of amendments, to the bill of exceptions filed by the sheriff. This is not a case where they might have been added by amendment as necessary parties in order to afford relief to tlie sheriff, the only plaintiff in error in the original bill of exceptions. . Ordinarily, in making parties plaintiff in error by amendment, the new parties proposed should have been on the same side of the controversy in the court below with the plaintiff in error. Western Union Telegraph Co. v. Griffith, supra. But such was not the case now before us. The sheriff was a party all to himself, not on the side of the holders of the justice-court fi. fas., nor on that of the plaintiff in attachment, to whom the money was awarded. He did not purport to appear for either of them, nor was he allied with either. While, under certain conditions, bills of exceptions may be amended by adding parties plaintiff in error, this does not extend so far as to authorize a losing party on the trial of a controversy in the court below, who could have excepted but did not, ■ afterwards to have his name added by amendment to a bill of exceptions sued out by a different party not on the same side of the controversy with him, in order that he may proceed in his own interest to have the judgment reversed. Judgment canned.

All the Justices concur.