Jordan v. Kelly & Bros. , 63 Ga. 437 ( 1879 )

Bleckley, Justice.

1. The decision complained of was not made before the return day of the present term, so as to come here by an ordinary writ of error, but was made during the term, and comes up by what may be called a “fast” writ, under sections 3213 and 3216 of the Code. The decree dismissing the bill on demurrer is, therefore, not before us as a direct matter for review. 44 Ga., 634; 58 lb., 184. If it were, the parties hero would be sufficient as to it, for that decree was rendered on the separate demurrer of Kelly & Brothers, and they alone were parties to' it on the defensive side of the case. McGaughey vs. Latham, last term. A writ of error like the present can bring hither only the extraordinary elements of the case, to-wit: the matters of injunction and receiver. If these are here properly, and if it should be found that the judge erred as to them, it might follow (and I think it would) that the correction of that error would, by way of incident, work a substantial reversal of the judgment on'demurrer, and ipso facto reinstate the bill. It seems to me obvious that where a complainant is entitled to an injunction or to a receiver, and the same is denied erroneously, he cannot be deprived of the benefit of his “fast” writ of error by reason of the addition of one error to another ; that is, by reason of adding the error of dismissing the bill to that of denying the injunction or receiver.

2. But we think the present case is not here properly as to the extraordinary elements, and that the motion made by the defendants in error to dismiss the writ must prevail-The defect is that Frances O. Jordan, one of the defendants to the bill of complaint, has not been served with the bill of exceptions, and is therefore, under section 4259 of the Code, nota party to the writ of error. Section 3213 distinctly requires service upon the “opposite party” within fifteen days from the signing of the bill of exceptions. The bill of complaint prayed for an injunction and receiver as to all the property and as to all of the defendants. The prayer was wholly denied ; and one of the assignments of error is that the judge erred in not appointing a receiver as prayed for. It is manifest that Mrs. Jordan is interested in the case as it stands in this court, and there can be no doubt that she is one of the “opposite party,” and ought to have been served, and thus made a party here.

Let the writ of error be dismissed.