Henderson v. Napier

Simmons, C. J.

1. It is a well-settled rule that all persons who are directly interested in the result of litigation should be made parties, either plaintiff or defendant, to proceedings for equitable relief. Civil Code, § 4844.

2. In the present case the allegations of the petition make a case, partly at least, for specific performance. The prayer is that the agreement entered into between the parties prior to the sale of the land be performed, but the petition discloses the fact that certain of the heirs, not parties to this proceeding, are to become the owners of the land upon the death of the mother. These heirs are interested in these proceedings, both because it is alleged that they entered into the agreement that the land should be sold, and because it is alleged that they “are to become the owners of this lot upon the death of the” mother and would be hurt by a decree of specific performance; Full and final relief could not be administered by the court unless they were parties, and it was therefore necessary that they be made parties. Complaint is made that the trial judge did not give the plaintiffs time to amend their petition and make parties; but under the facts disclosed there was no just cause •of complaint upon this ground. The judge, after hearing argument on the demurrer, held up his decision and at the time .suggested to the plaintiffs’ counsel that an amendment would probably cure the defects relied on in the demurrer; but no •offer to amend was made. The judge fixed a day on which his decision would be rendered, and on that day the decision was rendered. Plaintiffs’ counsel were at that time absent without leave of the court. The judge was certainly not bound •to withhold his decision until the appearance of plaintiffs’ counsel, nor was he bound to give them opportunity to amend after the judgment had been pronounced.

We do not pass upon the other ground of the demurrer sustained by the lower court, except to say that it is doubtful under •the facts alleged whether a tender was necessary. As to the remaining grQund not passed upon in the lower court, we are inclined to think that this ground of demurrer' was good. It seems too that this was an agreement not in writing and relating to land, and, under the case of Roughton v. Rawlings, 88 Ga. 819, within the statute of frauds and not enforceable.

Judgment affirmed.

All the Justices concurring.