Wyche v. Greene , 16 Ga. 47 ( 1854 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was it necessary that Elias McElvin'should have been joined in this writ of error ? We think not, most clearly. Leave was granted to amend the bill, after answer, by both defendants. Upon the filing of the amendment, and before, McElvin was served with a copy; Greene, the other defendant, appeared and demurred to the amended bill, and the demurrer was sustained. And it is to reverse this judgment, that this writ of error is presented by Wyche, the complainant. MeElvin, one of the defendants to the original bill, was no party to this interlocutory decree. Nor can his rights be impaired, either by the judgment rendered in the Court below, upon the demurrer, nor upon the writ of error in this Court. But when served with the amended bill, he may demur separately, and bring his writ of error in the same manner as though no such former proceeding was ever had. Like all other parties, he is entitled to his day in Court, and he cannot be prejudiced without it.

So far, then, from being a necessary party to this writ of error, he could not have been joined in it, without his consent, and a waiver of all of the preliminary privileges of being served with the amendment, &c. secured to. him by law.

Motion denied.