Frierson v. Dye

Beck, P. J. (After stating the foregoing facts.) Under the rulings made in the cases of Averitt v. Simpson, 147 Ga. 352 (94 S. E. 242), and Cutter v. Central Bank & Trust Corporation, 147 Ga. 754 (95 S. E. 285), and the numerous cases cited, the bill of exceptions in this case must be dismissed on the ground that this court is without jurisdiction to entertain the same. The partition proceeding set forth in the statement of facts was a statutory-proceeding at law, and constituted an entirely distinct case from the cause presented by the equitable petition; and, conversely, the equitable petition presented a different case from .that made by the application for partition filed by Walter Dye and others. The fact that the equitable petition is called an intervention in no way affects this ruling. It was not an intervention; it set up distinct grounds for equitable interference and for injunction against the statutory proceeding to partition. It sought injunction against the applicants in the statutory proceeding; it sought to set up equitable grounds for setting apart to the petitioner a specified portion of the entire tract of land. The petitioner was in no sense of the word an intervenor taking the case as he found it, but sought to show that the statutory proceedings for partition were insufficient to give him the relief to which he was entitled, and sought to have this common-law remedy enjoined. If the demurrer to the petition had not been overruled and the petition had prevailed, the common-law case would have disappeared. But the demurrer to the equitable petition was sustained, and the petition dismissed. If the petitioner wished to stand upon his rights as set forth in the equitable petition, he should have excepted to that single question in a' separate bill of exceptions. He could not merely file pendente-lite exceptions, and then, after a trial of the statutory proceeding for partition and an adverse decision in that, assign error upon the judgment rendered in the partition proceedings and have both cases disposed of upon a [210] review here in a single bill of exceptions. The questions here disposed of are covered by the cases of Averitt v. Simpson and Cutter v. Bank, supra, and the cases there cited. Writ of error dismissed. All the Justices concur.