Parrish v. Adams

Atkinson, J. Mrs. Subers was not made a party defendant in error, nor was there any service of the bill of exceptions upon her; nor was service acknowledged by her or for her by another duly authorized, with consent that she be made a party by amendment in the Supreme Court, and that the case proceed, as provided under the Civil Code, § 6160, par. 3. A motion was made to dismiss the bill of exceptions, on the ground that Mrs. Subers would be affected by the judgment to be rendered in the case, and was not made a party defendant in error or served with the bill of exceptions. If Mrs. Subers was affected and would be interested in sustaining the judgment which refused the injunction, she would be a necessary party to the bill of exceptions. Western Union Tel. Co. v. Griffith, 111 Ga. 551 (36 S. E. 859); Davis v. Walters, 140 Ga. 229 (78 S. E. 838). In one of the amendments to the petition filed by the plaintiff in the equity suit, Mrs. Subers was made a party defendant to that action and served as such. The notes upon which the suit was based were secured by the deed by which the land was conveyed to Laidler. Although under the contract between Mrs. Subers and Mrs. Parrish the latter undertook to pay off the notes, Mrs. Subers continued to be bound to Laidler on the notes for the amount thereof. The notes were due, and Mrs. Subers was entitled to have them paid by Mrs. Parrish. Any delay in the payment would result necessarily in the accumulation of interest and the continuation of the hazard of deterioration in the value of the property and destruction of the buildings, and the possible failure of Mrs. Parrish to ultimately pay off the debt. It was, therefore, to the interest of Mrs. Subers that the amount of the debt should be collected out of the property without delay. In order to collect the debt out of the property it was necessary to sue Mrs. Subers, the maker of the note, to judgment, and thereafter [4] for the executor to make a quitclaim deed reeonveying the land to her, and to record the deed for the purpose of levying the execution against her on the property. The property could then be levied upon and brought to sale, and the proceeds be applied, so far as necessary, to the payment of the debt. It was to the interest, therefore, of Mrs. Subers that the suit proceed against her in the city court, which means also that she was interested in sustaining the judgment which refused the injunction. Under this view Mrs. Subers was a necessary party defendant in error; and the bill of exceptions must therefore be Dismissed. All ihe Justices concur, except Beck, J., dissenting.