Deadwyler v. Bank of University

Lewis, J. Deadwyler, as administrator of the estate of White, brought in Jackson superior court an equitable petition against four defendants. Three of them demurred, each filing a separate demurrer; and the court sustained these demurrers, [512] passing as to each a separate order. Thus the case was dismissed as to these three defendants. The remaining’ defendant did not demur. The plaintiff sued out and brought to this court three separate and distinct bills of exceptions, in each assigning error on one only of the above-mentioned orders. Without stopping to comment upon this manner of attempting to bring here for review the errors alleged to have been committed in passing-all three of these orders, except to say that, under the decision of this court in Marshall v. Livingston, 77 Ga. 21, it does not seem proper, we are confident that, even if we could treat the three bills of exceptions as the equivalent of a single one- assigning error on all the orders, the case is here prematurely, and wé have, under the Civil Code, § 5526, no jurisdiction to entertain it. As to the plaintiff the case was not finally disposed of, but was left pending between him and the defendant who did not demur. The question in hand has been definitely and clearly settled in Zorn v. Lamar, 71 Ga. 80, in which it was held that the dismissal of a case as to one only of two defendants against whom it was brought “was not a final adjudication to which the complainants could except ” by suing out a direct bill of exceptions to the Supreme Court. This particular ruling, as appears from the opinion of Chief Justice Jackson, was expressly based upon the proposition that the dismissal as to one defendant would leave the case still pending between the complainant and the other defendant. In that case it was further laid down that “ The refusal to dismiss as to a defendant may be ground of exception by him, because, if ruled as he desired, the case would have been finally disposed of as to him; aliter as to a complainant who pursues two or more, and a dismissal is had as to one.” We therefore have no alternative, except to dismiss these writs of error. Being, for the reason above stated, without jurisdiction in the premises, we can not properly pursue any other course. It so happens, however, that giving the writs of error this direction is, in the present instance, a matter of no material consequence to the plaintiff in error; for upon a thorough examination of the record, we have reached the conclusion that the petition was clearly multifarious, and, therefore, not maintain [513] able; hence the result reached by dismissing the writs of error is the same as would have been reached had they been disposed of upon their merits. For this reason the request of counsel that we direct that these bills of exceptions be filed as exceptions pendente lite is denied. Each writ of error dismissed. All the Justices concurring, except Cobb, J., who was disqualified.