Ray v. Pease , 112 Ga. 675 ( 1901 )

Lumpkin, P. J.

The bill of exceptions now before us recites-that there came on to be heard in the superior court of Pulton county “ the case of Emma C. Pease vs. A. F. Ray, claimant, and P. P. Pease, administrator of Emma C. Pease, vs. A. F. Ray, claimant, the two cases having been by the order of the court consolidated, the same being claims to levies upon certain lands as th'e property of L. R. Ray, the defendant in fi. fa.” This-bill of exceptions then proceeds to state that the jury returned a verdict finding the property levied upon subject; that the claimant, Mrs. Ray, thereafter made a motion for a new trial; that the same was overruled, and that she excepted. It affirmatively appears from the record that, before the hearing took place in the lower court, Mrs. Emma C. Pease and P. P. Pease had both departed this life. It would seem, therefore, that the court below went through the form of having a trial between two deceased persons, designated as plaintiffs in execution, on the one side, and a living claimant on the other. Though the record further discloses that Clifford L. Anderson had been appointed administrator of Mrs. Pease, it does not appear that issue was ever joined between Anderson and Mrs. Ray upon the question whether or not the land levied upon was subject to the executions, respectively, in favor of Mrs. Pease, and of P. P. Pease'as her administrator, which had been levied thereon. Even if we would be warranted in assuming that Anderson really figured at the hearing below in the capacity of a plaintiff in execution, it would stiff remain true that he was not made a party to nor served with a copy of the biff of exceptions. But one result can possibly follow, viz., that the writ of error must be dismissed. There being no defendant in error, there is no case here.

Writ of error dismissed.

All the Justices concurring.