Opinion
29304.
DECIDED MARCH 19, 1942.
Appeal; from Morgan superior court — Judge Jackson. July 28, 1941.
Sydney H. Baynes, A. F. Jenkins, Courtney Lathem, for plaintiffs in error. Miles W. Lewis, contra.
A party more favorably affected by a verdict and judgment than she is unfavorably affected is a necessary party defendant in a bill of exceptions in which there is an exception to the judgment to which such party does not except; and a failure to serve her with a copy of the bill of exceptions as required by law will result in a dismissal of the writ of error, in the absence of an acknowledgment or waiver of service by her or some one so authorized.
DECIDED MARCH 19, 1942.
C. A. Sanders, as executor of the will of Mrs. C. B. Speer, petitioned the court of ordinary of Morgan County for a citation requiring the legatees under the will and all parties interested to be present at the settlement of his account before the ordinary. Service of citation was acknowledged by Mrs. Evelyn S. Brightwell, a legatee, and by H. H. Furlow, as attorney in fact for Mrs. Celeste Furlow Johnson, a legatee. H. H. Furlow, as administrator of the estate of Mrs. E. C. Furlow and as attorney in fact of Mrs. Celeste Furlow Johnson, daughter and sole heir of Mrs. E. C. Furlow, filed a response to the citation, which was amended, which set forth among others, the contention that certain personal property sold as the property of the estate of the deceased was not the property of the estate but was the property of the estate of the life tenant, Mrs. E. C. Furlow, and that the court of ordinary had no jurisdiction to try the title thereto. Mrs. Brightwell did not appear. The case was appealed to the superior court by consent and by that court referred to an auditor. The auditor found that the estate was indebted to Judge A. S. Thurman in the sum of $600 for services rendered the executor, and to Miles W. Lewis the sum of $150 for like services. He also found that various items of personal property belonged to the estate of Mrs. Speer rather than to that of Mrs. E. C. Furlow, and in favor of commissions to the executor for all past and future disbursements except on the part of the estate paid to him as legatee, and in favor of commissions of $200 to the executor on the property divided in kind among the legatees. After ordering the costs and expenses paid the auditor ordered the balance of the assets remaining to be divided equally among the remaindermen, and that upon payment thereof the executor was entitled to a discharge. Various motions relating to the auditor's report were overruled. The exceptions of law were overruled. Two exceptions of fact were submitted to a jury which found against the auditor's report as to fees allowed the attorneys for the executor, reducing them to $450, and in favor of the auditor's report as to the allowance of commissions to the executor. The judge directed a verdict as to all the others questions of fact raised in the exceptions of fact, among which was the question as to which estate owned various items of personalty, the testator's estate or that of Mrs. E. C. Furlow, a life tenant. Mrs. Celeste Furlow Johnson filed a motion for new trial and an amendment thereto, service of which was acknowledged by C. A. Sanders as executor. The motion was overruled.
The bill of exceptions named H. H. Furlow, attorney in fact for Mrs. Celeste Furlow Johnson, and H. H. Furlow, administrator of the estate of Mrs. E. C. Furlow, as plaintiffs in error, and C. A. Sanders, executor of the will of Mrs. C. B. Speer, and Mrs. Evelyn S. Brightwell as defendants in error. The attorney for the executor acknowledged service of the bill of exceptions. The attorney for H. H. Furlow, in his representative capacity, entered a certificate on the bill of exceptions to the effect that he mailed a copy of the bill of exceptions to Miles W. Lewis, attorney for defendants in error, and that he had on the date of the certificate personally served a copy of the bill of exceptions on Mrs. Evelyn S. Brightwell. The certificate of service of the bill of exceptions was dated August 28, 1941. The bill of exceptions was certified on August 16, 1941. The executor and Mrs. Brightwell moved to dismiss the writ of error, for the following reasons: because the bill of exceptions was not served on Mrs. Brightwell within ten days from its certification; because the return of service on Mrs. Brightwell was not verified; because proper service on Mrs. Brightwell was not made on her or on an attorney representing her, nor has she acknowledged service; because she could not be served by mail; because Mrs. Celeste Furlow Johnson, a defendant in the court below, was not made a party to the bill of exceptions, and because C. A. Sanders, individually, was not made a party thereto. H. H. Furlow, attorney in fact for Mrs. Celeste Furlow Johnson, and H. H. Furlow, as administrator of the estate of Mrs. E. C. Furlow, moved in this court for leave to amend the bill of exceptions by adding the names of Mrs. Celeste Furlow Johnson and Mrs. Evelyn S. Brightwell as plaintiffs in error and by striking the name of Mrs. Brightwell as a defendant in error.
The motion by C. A. Sanders, as executor of the will of Mrs. C. B. Speer, to dismiss the writ of error must be sustained. Assuming for the sake of argument without deciding that Mrs. Celeste Furlow Johnson and H. H. Furlow, as administrator of the estate of Mrs. E. C. Furlow, are proper parties plaintiff in error, or could be made so by amendment under this record, Mrs. Evelyn S. Brightwell could not be added as such party by amendment because she was not a party movant to the motion for new trial in the lower court. Not having been a party to the motion she could not except to the order overruling it. This is not a case where a party or a co-party has a right to use her name without her participation and consent. Mrs. Brightwell was a proper party defendant in error. The verdict and judgment rendered in the case were partly in her favor and partly against her. It was more favorable than unfavorable. It was against her in that the estate, in the final assets of which she was to share to the extent of a one-third interest, was found liable for $650 fees and expenses. It was favorable in that $2543 and odd cents worth of personal property was found to be the property of the estate of Mrs. Speer and which was claimed in this case to be the property of the estate of Mrs. E. C. Furlow, of which Mrs. Celeste Furlow Johnson was sole beneficiary. This case does not fall within the class of cases which hold that "Where, in a suit against two or more codefendants, the verdict and judgment are adverse to the defendants, and one of them makes a motion for a new trial, which is overruled, the movant can except to the judgment overruling his motion and bring the case to the Supreme Court without making any of the other defendants parties to the bill of exceptions; and a failure to do so will not work a dismissal of the writ of error." See Daniel v. Virginia-Carolina Chemical Cor., 50 Ga. App. 275 (4) ( 177 S.E. 925), and cit. Those cases are predicated on the proposition that the findings are unqualifiedly against all the defendants and that there could be no interest of any in having an adverse judgment affirmed. The instant case is not such a case. It follows that Mrs. Brightwell was a proper party defendant in error, and must have been served with a copy of the bill of exceptions as required by law or she must have acknowledged service or waived it. She did not acknowledge service or waive it. She was not personally served until twelve days after the certification of the bill of exceptions, which was two days beyond the ten days provided by law. The same defect appears in the purported service by mail on her alleged attorney. There being no legal service of the bill of exceptions on Mrs. Brightwell, a necessary party defendant in error, the writ of error must be
Dismissed. Stephens, P. J., and Sutton, J., concur.