Emmett & Co. v. Dekle , 1909 Ga. LEXIS 368 ( 1909 )

Evans, P. J.

(After stating the foregoing facts.)

1. At the appearance term the plaintiffs in error demurred generally and specially to the petition. To demur generally to¡ a petition as presenting no cause of action is to plead to the merits of the ease. Appearance and pleading to the merits amount to a waiver of process and service, and by demurring generally these particular defendants were properly before the court. They could not invoke the judgment of the court upon the sufficiency of the petition, unless they were to be hound by such judgment. The court very properly refused to dismiss the case because the plaintiffs in error had not been served with process. Lyons v. Planters Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155); Dykes v. Jones, 129 Ga. 99 (58 S. E. 645).

2. The two defendants residing in the county where the..suit was brought were Wade B. Shrivall and Mrs, Emmett. Shrivall was only a nominal party, and was never served. The plaintiffs in error insist that Mrs. Emmett was not a party to the suit,,.either, individually or as administratrix of the estate of P. H. Emmett. The original petition began with the allegation that petitioners complained against Lizzie Y. Emmett, administratrix of P. LI. Emmett, deceased, and the other defendants therein named. Her qualification as administratrix of P. H. Emmett was alleged to have occurred within twelve months of the contemplated filing of the suit, and it was further alleged that she “as such administratrix has waived the exemption of twelve months from her qualification from suit in the case herein made and presented,- and she is a resident of the county of Emanuel.” It is alleged that the mortgage executed by her intestate is fraudulent and void, for the reasons stated. The prayers of the petition include those for. a judgment (de bonis testatoris) against-her as administratrix of P. H. Emmett, and for a cancellation of the mortgage of P. LI. Emmett & Company to the Ellis-Young Company. Her attorney acknowledged service as follows: “Service of a copy of the within petition acknowledged, process and copy process and service thereof waived, and Lizzie Y. Emmett, admx., hereby waives the 12 months exemption from suit as such administratrix. Nov. 19th, 1901. [Signed] G. H. Williams, Atty. at law for Lizzie Y. Emmett, Admx. of P. H. Emmett, deed.” The prayer for process against the several defendants included Lizzie Y. Emmett, without describing her representative character; but as no relief was prayed against her individually, her citation to court in the process would be to answer the suit served on her. At most it would be but an irregularity in the process, and one she could not take advantage of after she had specifically acknowledged service of a copy of the petition, and waived process, copy process, and service of process.

Our attention is called to the cases of Seisel v. Wells, 99 Ga. 159 (25 S. E. 266), and Clayton v. Farrar Lumber Co., 119 Ga. 37 (45 S. E. 723), as maintaining a contrary view. In the first-cited case a petition was filed against several defendants, but •process was prayed against only two. The clerk attached process against all. Those defendants against whom there was no prayer for process acknowledged service of the petition. This court held, that the clerk had no authority to annex to a petition a .process requiring the appearance of persons against whom there was no prayer for process; and that a mere acknowledgment of service upon a petition, and a waiver of service of the same, is not a waiver of process or prayer for process. The other cited case is to the;'same effect. In the instant case, not only was process prayed against Lizzie Y. Emmett, but as administratrix of P. H. Emmett she specifically waived process, copy- process, and service thereof. We think that Lizzie Y. Emmett as administratrix of P. H. Emmett was a party defendant.

3. Counsel for plaintiffs in error state in their brief that their chief contention is that the case ought to have been dismissed, because the superior court of Emanuel county was without jurisdiction. If Mrs. Lizzie Y. Emmett, as administratrix of P. H. Emmett, deceased, was a necessary and proper party against whom substantial equitable relief was prayed, then Emanuel superior court had jurisdiction of the case. It was charged that the Tattnall Investment Company and the estate of P. H. Emmett were insolvent, and that the assets of P. H. Emmett & Company were covered by apparent liens which would more than exhaust them; and it wás only by invoking the aid of equity to set aside these liens and the sale thereunder which was alleged to be fraudulent, and by án accounting between the creditors, that a1 judgment either against the firm or its individual members could reach its assets. These mortgages were signed both by the partnership and the members of the firm as individuals, and the administratrix of the deceased partner was a necessary party to a proceeding in equity to set them aside. These mortgages were not only upon personalty, but also upon realty. The legal title to this real estate was not in the partnership, but in the partners as tenants in common (Hartnett v. Stillwell, 121 Ga. 386 (49 S. E. 276, 104 Am. St. R. 151)), and the representative of the estate of a deceased partner would therefore be a necessary party to a proceeding to set aside a mortgage upon such real estate, signed not only by the partnership, but •also by her decedent. Again, the contract of partnership between P. ;H. Emmett, an individual, and the Tattnall Investment Company, a corporation, was void, since the power to form a partner-' ship is not one of those which is common to all corporations, but is wholly inconsistent with the scope and tenor of the powers expressly conferred, and the duties imposed upon a corporation in the absence of such permission in the charter. Gunn v. Central R., 74 Ga. 509. Nor can the corporation as surviving partner- here 'claim the legal right to administer the estate of the partnership. since it is only through the interposition of equitable principles that either its rights or obligations as a partner can be enforced. Had this suit been brought in Chatham county, the representative of the estate of P. H. Emmett, deceased, would have been a necessary party. It was therefore perfectly proper to bring this cause in Emanuel county. There was no error in refusing to sustain this ground of the demurrer. The grounds of special demurrer were not argued in the briefs.

Judgment affirmed.

All the Justices concur.