Hibble v. Mutual Oil Co.

Gilbert, J. In this court the defendants in error moved to dismiss the writ of error, on the ground that two of the three parties defendant to the suit were not made parties to the bill of exceptions and had not been duty served. The motion is denied. The demurrer of Mutual Oil Company was sustained, dismissing it as a party defendant, and the plaintiffs excepted. The case as to the other two defendants is still pending in the trial court. The latter defendants are not necessary parties to the bill of exceptions. Civil Code (1910), § 6138; McGaughey v. Latham, 63 Ga. 67 (2); Jones v. Hurst, 91 Ga. 338 (17 S. E. 635). The court erred in dismissing the suit as to Mutual Oil Company. As to it the petition alleged a cause of action. As to said defendant the court has jurisdiction, as one of several defendants, all of whom are alleged to have conspired to defraud and defeat the petitioners in their assertion of title to personal property now held by two of the defendants, Mutual Oil Company and First National Bank of Marietta, transferred to them by the defendant Community Oil Company. Substantial relief is prayed of the bank, and it is a resident of Cobb County, where the suit was brought. Judgment reversed. All the Justices concur.