Craig v. Webb , 70 Ga. 188 ( 1883 )

Jackson, Chief Justice.

This is a bill of exceptions brought by G. W. F. Craig,, Anderson S. Bell and John Silvey, who assign error to a judgment of the superior court of the county of Milton on a money rule against the sheriff, to which themselves, and Louisa J. Rogers, B. J. Brown, Robert Medlock,, Mathew Sloan, James M. Taylor, L. J. Rogers, Hardy and Eliza Strickland, and R. P. Baugh were parties in the court below. No party is made defendant to this bill of exceptions but Hardy and Eliza Strickland, who alone are served with it by acknowledgment of service by their counsel. A motion was made by counsel for G. W. F. Craig, one of the plaintiffs in error, to amend the bill of exceptions by adding thereto the names of Robert Med-lock, John Palmour, Louisa J. Rogers, Robert P. Baugh James M. Taylor and Wm. E. Simmons as plaintiffs in error.

1. Whilst the statute of 1880-81, pp. 123, 124, addenda to Code, 4272 (b), dispenses with making the sheriff a party to a rule to distribute money, it requires service on all claimants of the fund who are interested in sustaining the-judgment of the court below to be made parties defendant to the bill of exceptions by service. The only mode of' making a party defendant to a bill of exceptions is to serve-him with a copy or to get his acknowledgment thereof.. Ho one else is a party defendant to the bill of exceptions. Code, §4259. Medlock and Sloan got a part of the money under the judgment of the court below.distributing it, and .they are interested in the affirmance of the judgment, and must be made parties defendant to the bill of exceptions. If made parties plaintiff thereto, they would be on the wrong side, We know of no law by which it can be done. The Code, addenda §4272 (b), is imperative that they be made defendants to the writ of error, and the Code, §4259, points out the .only way in which that can be done, and that is by serving them. The sheriff is not a party defendant necessarily and substantially, as the administrator was In the case in 62 Ga., 135, 138, but the case falls within the xuling in 66 Ga., 247, where the motion to amend was denied. The interest here, as in the 66th, is antagonistic to plaintiffs in error.

The case in the 62 Ga., 138, was brought by the administrator against the contestants for the fund; this is a rule by one of the contestants against the sheriff, and to which the other contestants were made parties, and were p>arties against the plaintiff in the rule. The motion to make Medlock a party plaintiff in error, when he does not have any error to complain of, but must want the judgment which gave him the money below affirmed, must therefore be denied. The motion to amend does not include Sloan. If it did, it would be ruled in the same way. And the same applies to Wm. E. Simmons and Louisa J. Rogers, who are interested in the affirmance of the judgment.

So far as Wm. E. Simmons is affected, he could acknowledge service, and he might also for Medlock, as attorney for lmn, if the fact appeared of record or was undisputed, under Code, section 4259 ; but the trouble would still exist as to Sloan and Louisa J. Rogers. We can, therefore, ¡see no way out of the trouble in which the cause is involved than to dismiss it. It is true, that the counsel for the Stricklands do also assign error as to others in the bill of exceptions, but that is a mere permissive right. % Their acknowledgment of service was procured to make them defendants in error; and if they are not, no substantial party is,'and the- case would go out, because there wopld be no defendant at all.

Dismissed for want of service.