Opinion
15018.
NOVEMBER 21, 1944.
Receivership, etc. Before Judge Pomeroy. Fulton superior court. July 26, 1944.
Charles G. Bruce and R. B. Pullen, for plaintiffs in error.
Houston White, Augustus M. Roan, and Noah J. Stone, contra.
The judgment overruling the general grounds of demurrer to the petition purports upon its face to be provisional only, indicating such a reservation of jurisdiction in the trial court as to prevent the bringing of a bill of exceptions to this court assigning error thereon. The bill of exceptions must therefore be dismissed for want of jurisdiction in this court to entertain it.
No. 15018. NOVEMBER 21, 1944.
Mrs. E. W. Allen filed a petition for injunction and receiver in Fulton superior court against E. W. Allen, Mary B. Allen, Noah J. Stone, R. B. Pullen, J. Earle Smith, J. H. Geffken, W. E. Dupre, Magnolia Cemetery Inc., Peoples Loan Inc., and Peoples Loan Company. On July 26, 1944, the trial court passed the following order and judgment on the demurrers in the case: "At interlocutory hearing, the court hereby overrules each and every ground of the demurrer filed by R. B. Pullen on July 7, 1944, to the petition as amended. At interlocutory hearing, the Court hereby sustains ground 14 of the demurrer filed by Peoples Loan Company, J. Earle Smith, and J. H. Geffken, and plaintiff is allowed 20 days in which to amend by showing whether or not Smith, Geffken, and Pullen took a transfer of stock of E. W. Allen in Peoples Loan Incorporated, and, if so, how they took the same, and upon failure so to amend, said ground 14 will be sustained in full, and the related portions of the petition will then stand stricken. Ground 22 thereof is sustained in so far as it complains: "That it shows upon its face that the stock was not in fact transferred at all as alleged in the original or in said amendment, but on the contrary, that the corporation was dissolved by the stockholders thereof, and the reference to the same, and the claim of the plaintiff that such dissolution amounted to a transfer of said stock, is a conclusion of the pleader and self-contradictory;' and in so far as said ground 22 complains: `Moreover the allegations of said paragraph directly contradict the allegations of the plaintiff's original petition respecting these defendants;' and said ground is further sustained in so far as it complains: `Because it was not alleged how or in what manner and by whom J. Earle Smith was appointed liquidating agent;' and the same is further sustained in so far as it relates to the complaint in said ground 22 in relation to `additional assets,' and how and in what manner he dissipated the same.' The plaintiff will be allowed 20 days in which to amend said petition with respect to the above-quoted complaints, and upon failure so to do, all reference to said complaints in the petition and amendment will stand stricken. Ground 23 thereof is hereby sustained, and the related portions of said petition are hereby stricken. All other grounds of said demurrer filed by said Peoples Loan Company, J. Earle Smith, and J. H. Geffken are hereby overruled."
On August 12, 1944, the bill of exceptions was sued out in the instant case, complaining of the overruling of the general demurrer, and complaining that the trial judge on August 2, 1944, overruled an application for supersedeas and an application to require the plaintiff to make an indemnifying bond. One bill of exception was filed, naming Peoples Loan Co., J. Earle Smith, J. H. Geffken, and R. B. Pullen plaintiffs in error.
"It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction." Welborne v. State, 114 Ga. 793, 796 ( 40 S.E. 857); Tillman v. Groover, 25 Ga. App. 118 ( 102 S.E. 879). "In the instant suit for damages, the trial judge, on March 14, 1930, passed an order overruling the general grounds and sustaining several special grounds of a demurrer to the petition, and then in the same order provided that `the plaintiff have until and through the 25th day of March, 1930, to amend her petition to meet the grounds of the special demurrer above and herein sustained, and that copy of said amendment be served on the defendant, or its counsel, within five days thereafter.' The defendant on April 7, 1930, sued out a bill of exceptions assigning error upon the judgment so far as it overruled the demurrer, and in the bill of exceptions indicated nothing as to whether any further proceedings were had in the trial court. The judgment complained of shows upon its face that it was not intended to be final, and the bill of exceptions must therefore be dismissed for want of jurisdiction in this court to entertain it. Folsom v. Howell, 94 Ga. 112 ( 21 S.E. 136); Steed v. Savage, 121 Ga. 84 ( 48 S.E. 689); Lovelace v. Browne, 126 Ga. 802 (2) ( 55 S.E. 1041); Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 ( 78 S.E. 902); Georgia Ry. Power Co. v. Kelly, 150 Ga. 698 ( 105 S.E. 300); Cooper v. Whitehead, 163 Ga. 662 ( 136 S.E. 911); Massengale v. Colonial Hill Co., 34 Ga. App. 807 ( 131 S.E. 299); Smith v. Bugg, 35 Ga. App. 317 (2) ( 133 S.E. 49)." Georgia Power Co. v. Richards, 42 Ga. App. 741, 742 ( 157 S.E. 241). See also Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195); Upshaw v. Ragsdale, 192 Ga. 11 ( 14 S.E.2d 486).
The defendant Pullen filed a separate general demurrer, which was overruled. The defendants Peoples Loan Company, J. Earle Smith, and J. H. Geffken jointly filed the same general demurrer as did Pullen, which was overruled; but added to their demurrer various grounds of special demurrer, some of which were sustained unless the petition was amended within twenty days. The petition named Pullen, Peoples Loan Company, J. Earle Smith, and J. H. Geffken as joint defendants, and charged them with a joint conspiracy to defraud, hinder, and delay the petitioner as a creditor of E. W. Allen. The record discloses that the paragraphs of the petition to be dismissed unless amended were the paragraphs charging the above-referred-to conspiracy. These grounds of the demurrer, while denominated special demurrers, nevertheless had the effect of going to the substance of the whole petition, and challenged the plaintiff's right to any relief against any of the defendants herein named in so far as the charge of a conspiracy to hinder, delay, and defraud is concerned.
We hold, under the circumstances of this case, that the demurrer filed by Peoples Loan Company, J. Earle Smith, and J. H. Geffken inures to the benefit of R. B. Pullen. This would be true even though Pullen had made no appearance and filed no pleadings. "When the trial court erroneously overrules a demurrer interposed by some of the defendants, which goes to the very vitals of the plaintiff's case, and the parties excepting and those not excepting stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment, the judgment of reversal will operate in favor of all the defendants." Tate v. Goode, 135 Ga. 738, 740 ( 70 S.E. 571, 33 L.R.A. (N.S.) 310). "Where some of several joint defendants demur to the plaintiff's petition, and the demurrer goes to the substance of the whole petition and challenges the plaintiff's right to any relief, such demurrer inures to the benefit of all, though some may be in default." McKinney v. Powell, 149 Ga. 422, 430 ( 100 S.E. 375). See also Tillman v. Davis, 147 Ga. 206 ( 93 S.E. 901); Witherow v. Board of Drainage Commissioners, 155 Ga. 476 (2) ( 117 S.E. 329); Benson v. Lewis, 176 Ga. 20 ( 166 S.E. 835). On the question of the finality of a judgment, of the character here involved, being held in abeyance, see Peyton v. Rylee, 197 Ga. 545 ( 30 S.E.2d 94). The above-quoted rule of law is applicable to this case. The effect of holding otherwise would be to make it possible to dispose of this litigation in piecemeal fashion. This result should be avoided, and is the underlying reason for the rules of law above enunciated.
In view of what has been said, the bill of exceptions must be dismissed as having been prematurely brought.
Writ of error dismissed. All the Justice concur.