Bank of Dalton v. Heartsill , 22 Ga. App. 156 ( 1918 )

Broyles, P. J.

1. At the April term, 1915, of the superior court of Whitfield county, a joint suit on an unconditional contract in-writing was brought against five defendants. Four of the defendants filed sworn defenses to the suit. The other defendant, B. L. Heartsill, filed no plea. Upon the trial a general verdict in favor of the ‘'defendants” was-rendered. Judgment was entered, however, in favor only of the four defendants who had filed pleas. No judgment in favor of or against Heartsill was entered. No motion was made to ’have the verdict corrected or construed, so that it would read in favor of the four defendants who had filed pleas, and against Heartsill, who had failed to do so. Instead of this a motion for a new trial was made by the plaintiff as to all of the five defendants; it was overruled, and the plaintiff excepted, naming in the bill of exceptions-all-five defendants as defendants therein, but the bill of exceptions was not served upon Heartsill, nor was service acknowledged by him or for him by another duly authorized; and the plaintiff in error failing to establish, to the satisfaction of this court, its contention that Heart-sill was not a necessary party to the bill of exceptions, the writ of error was dismissed. Bank of Dalton v. Clark, 19 Ga. App. 729 (92 S. E. 40). Thereafter, at a subsequent term of the lower court to that at which the trial was had, but before the remittitur from this court had been made the judgment of that court, or recorded upon ,its minutes, the plaintiff bank filed a written motion in the trial court to set aside the verdict in so far as any adjudication of plaintiff’s rights against Heartsill was concerned, and to allow the plaintiff to enter up judgment in its favor against Heartsill. A rule nisi was issued, and upon the hearing thereof the court sustained a demurrer to the motion and dismissed the motion; and the plaintiff excepted.

Under the facts stated above, and under the decisions of this court in Bank of Dalton v. Clark, supra, and in Pittsburg Plate Glass Co. v. Maril, 21 Ga. App. 682 (94 S. E. 903), the court did not err in dismissing the motion. This ruling being controlling, it is unnecessary to consider the other assignments of error.

Judgment affirmed.

Bloodworih and Harwell, JJ., concur.