Zimmerman v. Osburn

Hawkins, Justice. In this case the bill oí exceptions recites that the plaintiff brought an equitable petition, which is set out in the bill of exceptions, against a named defendant as an individual and as executrix of the will of a named testatrix, and that the plaintiff amended her petition by alleging that a third person, a minor and legatee under the will of the deceased testatrix, would be affected by the judgment rendered, and prayed that such third person be made a party defendant and served, and that a guardian ad litem be appointed to represent such minor, which amendment was allowed by the trial court and ordered filed subject to objection, copy of the amendment also being set out. The bill of exceptions further recites that the defendant as an individual and as executrix filed demurrers to the petition, which were sustained, and to which judgment the plaintiff excepts, but no party is designated in the bill of exceptions as defendant in error, and the only service [763] appearing thereon is an acknowledgment by a named attorney as “Attorney for defendants in error.” Held: Argued May 9 and 10, 1955 Decided June 14, 1955 Rehearing denied July 14, 1955. James S. Wilson, Eugene C. Black, for plaintiff in error. Louis A. Peacock, contra. 1. “It is the duty of this court, with or without motion, to inquire into its jurisdiction, and to dismiss a writ of error where jurisdiction is lacking.” Stewart v. Stewart, 208 Ga. 83 (1) (65 S. E. 2d 151). 2. “A bill of exceptions should on its face affirmatively and unequivocally show who are the parties thereto. . . Respecting designation of the parties, the rule is well settled by the decisions of this court that the recitals in a bill of exceptions should in every instance be sufficiently clear and explicit to enable the officer into whose hands it may be placed for service to determine beyond peradventure precisely whom he is expected to serve with a copy of the same.” Lanier v. Bailey, 206 Ga. 161 (2) (56 S. E. 2d 515). 3. “An acknowledgment of service of the bill of exceptions by an attorney of record in the trial court as attorney for ‘defendant in error’ does not cover any person who was not, at the time such acknowledgment was entered upon the bill of exceptions, actually named or designated therein as a party defendant in error.” Hancock v. Lizella Fruit Farm, 184 Ga. 73 (190 S. E. 362). See also Chandler v. Foote & Davies Co., 210 Ga. 370 (3) (80 S. E. 2d 292). 4. “No party being designated in the bill of exceptions as defendant in error, the writ of error must be dismissed.” Fowler v. Wheeler, 176 Ga. 189 (167 S. E. 107). See also Gehr v. City of Atlanta, 189 Ga. 701 (1) (7 S. E. 2d 264), and cases there cited. Writ of error dismissed. All the Justices concur.