*766 By the Court.
Lyon, J.,delivering the opinion.
Were the complainants entitled to the motion to the extent made in the Court below? We hold that they were not. If the demurrer to the bill of review had been overruled, on the ground taken therein, that there was no error in law in the decree, then the complainants would, unquestionably, have been entitled to their motion; for it is a well settled rule of equity practice, that “ when a bill is filed to review a decree for error in law, apparent on its face, and a demurrer to such bill presents an issue of law only for the judgment of the Court, if the demurrer be overruled the effect is, to set aside and open the decree”—Guerry vs. Perryman, 12th Ga. Rep., page 18; Caney vs. Giles, 10th Ga. Rep., page 22. The demurrer was neither sustained or overruled upon that ground by the judgment of the Court on the demurrer, but the Court overruled the demurrer, only, on the fact contained in the bill — that is, the death of James C. Neves, and expressly declined to pass on the other grounds as to the error of law; in such case, that is the judgment of the Court overruling the demurrer on matter of facts contained in the bill of review, and on which the equity of the bill rests, does not reverse and vacate the original decree.—Guerry vs. Perryman, 12th Ga. Rep., p. 14.
The complainants did not put their right, to have this motion allowed by the Court, on the ground that there was error of law apparent on the face of the decree; that question was not made or considered by the Court below, now argued before us. But the right to have the motion granted, was put entirely upon the admitted fact, that James C. Neves, one of the complainants in the original bill, was dead, at and before the filing of that bill, and his name was unauthorizedly in that bill. So understanding the motion, as well as the decision of the Court below, so we decide in this case, leaving the other question, made by the bill, that there was error of law in the decree, as the judgment on demurrer did, an open question, to be followed up by the parties or not, as they may think proper; not that we desire to avoid it, but because it has not been made, argued or passed upon by the Court below.
1. Then what is the effect upon the decree on the demur*767rer to the original bill complained of, of the fact, that at and before the filing of the bill, James C. Neves was dead? We think that the effect is only to vacate the decree as to James C. Neves, and not as to William Neves. Why should it have any other effect? William Neves brought the bill; he had his day in Court; he lost none of his rights by reason of the death of his co-complainant. If the demurrer should be set aside as to him, the effect will be to give him another day in Court, to have the same matter re-adjudicated; it would be to allow him to take advantage of his own wrong, to the prejudice of the defendant. It was not necessary, that is, it was not indispensable, that James C. Neves, or his representative should be joined with him in the suit.
The case of Fedlie vs. Dill, 3d Kelly, p. 104, was relied on, as an adjudication of this point. We do not think it is, or we should enforce it in this case as well as all others to which it applies; for a decision of this Court once made must, in my opinion, stand and be enforced, though I do not think the preamble of that case should be extended beyond its facts. That was a judgment at law against defendants who were brought into Court; they did not voluntarily come in — the error was the act of the plaintiff, not theirs. Here, the error is the act of the party who seeks to take advantage of it; this is a proceeding in equity where the Courts are not governed by the strict rules of law, but will grant relief according to principles of right, without regard to the strict rules of form. If the decree had been in favor of complainant, had he taken a benefit by it, on a motion to set aside for the irregularity, the Court would have allowed him to amend; and where he seeks to avoid it on that account, the Court will do no more. To that extent the Court below was willing to grant the motion, and that was as much as he was entitled to have. Such is the effect of the decision : Newman vs. Law, 57th R., p. 578, and that was a proceeding at law.
Judgment affirmed.