Smith v. Winer

219 Ga. 738 (1964)

135 S.E.2d 892

SMITH v. WINER et al.

22360.

Supreme Court of Georgia.

Submitted February 10, 1964.

Decided March 5, 1964.

Wade H. Leonard, for plaintiff in error.

Shaw Stolz & Fletcher, G. W. Langford, contra.

ALMAND, Justice.

Roy H. Smith filed his equitable petition against Flavie Roach wherein he prayed for a decree impressing certain moneys in the hands of the defendant with a trust in favor of the plaintiff and to restrain the defendant from disposing of such funds. Smith subsequently tendered an amendment wherein, among other prayers for relief, he sought to make Harry Winer and three others parties defendant. A rule nisi was issued requiring the four parties to show cause why they should not be made parties to the case. On the hearing of the rule, the court on objection and motion refused to make them parties and dismissed the amended petition as to them. The sole assignment of error in the bill of exceptions is to this order. Held:

The order of the court sustaining the motion of Winer et al. *739 to dismiss and refusing to make such named parties defendants is to be regarded as an order refusing to make them parties to the case. Burkhalter v. Peoples Bank, 169 Ga. 645 (151 SE 389). The record therefore does not show that any final judgment or decree has been rendered within the meaning of Code Ann. § 6-701 to which a bill of exceptions can be sued out. This writ of error is premature and this court is without jurisdiction to entertain it. Workingmen's Union Assoc. v. Reynolds, 138 Ga. 123 (74 SE 838); Clark v. Dallas Land Co., 141 Ga. 110 (80 SE 556); Jackson v. Fite, 165 Ga. 382 (140 SE 754); Burkhalter v. Peoples Bank, 169 Ga. 645, supra.

Writ of error dismissed. All the Justices concur.