Albany Federal Sav. & Loan Ass'n v. Henderson

• Citation: 31 S.E.2d 20,198 Ga. 116
• Decision Date: 06 July 1944
• Docket Number: 14818.
• Court: Georgia Supreme Court
• Parties: ALBANY FEDERAL SAVINGS & LOAN ASS'N v. HENDERSON et al.

31 S.E.2d 20

198 Ga. 116

ALBANY FEDERAL SAVINGS & LOAN ASS'N v. HENDERSON et al.

No. 14818.

Supreme Court of Georgia

July 6, 1944

Rehearings Denied July 18, 1944. [Copyrighted Material Omitted]

Syllabus by the Court.

1. Where a special verdict answering specific questions in an equity case is returned, a bill of exceptions assigning error upon the judgment overruling a motion for new trial, which fails to show that a decree based on the special verdict and fixing the rights of the parties in the case has been entered, is premature and will be dismissed by the Supreme Court, because the case is still pending in the trial court until such decree is entered.

(a) A judgment granting a motion for new trial in an equity case where a special verdict has been returned, automatically sets aside and cancels a previous decree based upon such special verdict.

(b) Where a special verdict is returned in an equity case and a decree is entered, and a motion for new trial is filed, and it is sought to have this court review a judgment refusing a new trial, it is not necessary to except to the decree in addition to assigning error on the judgment overruling the motion for new trial; but to give this court jurisdiction to review the judgment on the motion for new trial, it is sufficient to assign error on such judgment, and to show by a recital in the bill of exceptions, or by specifying therein the decree as a necessary record to be sent up, that a decree fixing the rights of the parties based upon a special verdict has been entered, thus showing that the case has terminated in the trial court. Lingo v. Rich, 169 Ga. 628, 151 S.E. 387; Henson v. Merritt, 193 Ga. 108, 17 S.E.2d 545; Griffin v. Smith, 197 Ga. 123, 28 S.E.2d 261; Williams v. Cross, 197 Ga. 295, 28 S.E.2d 924 Little v. Peterson, 197 Ga. 52, 28 S.E.2d 262, and other like cases, in so far as they hold to the contrary, are hereby expressly overruled.

(c) The fact that in the present case the decree was entered during the pendency of a motion for new trial and the existence of a supersedeas, specifically granted on the verdict, does not require this court to dismiss the writ of error on the ground that the decree as entered is void, since the question of jurisdiction is settled by the rule that, although the judgment excepted to is shown on the face of the record to be void, this court will not on that account dismiss the writ of error, but will reverse the case because of such invalidity of the judgment. The showing in the bill of exceptions that a decree has been entered is sufficient, irrespective of the validity or invalidity of such decree.

(d) The motion to dismiss the writ of error on the ground that no exception is made to a final decree within the time required by law is, under the rulings above made, denied, since error is assigned on the judgment overruling the motion for new trial, and the bill of exceptions specifies the decree as a necessary record to be sent up to this court.

2. Where, to a petition naming several defendants, one of the defendants specially demurs on the ground of misjoinder and multifariousness, but before insisting on a ruling thereon enters into a written stipulation with all the parties, which is made an order of the court, agreeing that the defendant is due from the petitioner a named sum on a loan account, and leaving for determination only the question whether the petitioner has sustained special damage, and in what amount, as alleged in the petition, by reason of the refusal of such defendant to advance the full amount of a loan of $16,000 under a contract alleged to have been entered into between the petitioner and such defendant, the defendant by thus accepting the benefits of the written stipulation as to being due the sum named and agreeing that the amount of the alleged special damage be determined as between it and the petitioner, notwithstanding the naming of other parties as defendants and the contention of the demurrant that such action could not be prosecuted because they had no common interest with it in the litigation, waived its right to insist on such special demurrer. Accordingly, the court did not err in thereafter overruling the special demurrer.

3. Under the allegations of the petition, the special damages sustained by the petitioner by reason of the refusal of the defendant lender to advance the amount of the loan contracted for were such as the jury might reasonably find to have been in contemplation of the parties at the time the contract was entered into.

4. The paragraphs of the petition, alleging special damages because the failure of the defendant to advance funds contracted for rendered the attempted improvements and additions to the property of no value to the owner, untenantable, and of no rental value, were not subject to the grounds of special demurrers that the damages claimed were not in their nature recoverable. The allegation that, after such default by the defendant, it became impossible to obtain necessary materials to complete the work because of United States Government restrictions, and that, in consequence, the property must remain in its present condition for an indefinite time, was subject to the special ground of demurrer that it was immaterial and irrelevant on the question of damages.

5. The special demurrer to the allegations of the petition, that the defendant association had agreed to lend the petitioner the sum of $16,000 for the purpose of improving and making additions to described property, which demurrer attacked the same as not fully setting out the nature and character thereof, is without merit, since the petition shows an agreement to lend money to be used for a specified purpose, and not a contract to build for another, and does not show that the contract to lend was conditioned on any plans and specifications requiring the approval of the lender.

6. Where, as here, suit was brought to recover special damages sustained by the refusal of the lender to advance the amount contracted for, and counsel for the defendant lender elicited, on cross-examination of a witness for the petitioner, testimony as to a verbal agreement to lend a total of $16,000, and then showed by such witness that the agreement was prior to or contemporaneous with a written contract between the parties, which when introduced showed terms wholly at variance with the testimony, the court erred in overruling the motion of counsel for the defendant lender, at the conclusion of all the evidence, to exclude the testimony of the witness on the ground that it contradicted or varied the terms of the written contract, since the defendant had the right to identify the contract relied on by the petitioner and then to show that it was inconsistent with the written contract between the parties. The question here presented does not involve merely a rule of evidence, but a positive and substantive right of the defendant lender; and the general rule, that an answer which is responsive to a question asked by the party conducting the examination will not be ruled out although it would have been inadmissible if offered by the opposite party, has no application.

7. Two special grounds of the motion for new trial, complaining of a portion of the charge of the court as to reconciling any conflict between documentary evidence and the testimony of a witness or witnesses and as to the measure of damages on the theory that the contract was in parol, are controlled by the ruling in the preceding headnote and corresponding division of the opinion, and show reversible error for the reasons therein stated. Another special ground, complaining of the admission in evidence of a certain deed, is not argued or insisted on and will be treated as abandoned; and since the case is being reversed, it is deemed unnecessary to rule on the general grounds of the motion for new trial.

Statement of facts by DUCKWORTH, Justice.

Mrs Albert Henderson, as trustee for Albert Henderson, Jr., a minor, and as next friend for him, filed in the superior court of Dougherty County, Georgia, an equitable petition against Janie Eatman Williams, Albany Federal Savings and Loan Association, a corporation, M. A. Studstill, F. W. Godwin, individually and as executor under the will of Mrs. Annie M. Godwin, and as trustee for 'the parties named in' said will, Albert Henderson, individually and as executor and as trustee for 'the parties named in' said will, any children to be born to Albert Henderson or F. W. Godwin, and any and all other persons who might claim any right, title, or interest under the said will. Mrs. Annie M. Godwin died testate, and her will was duly probated, a copy being attached to the petition as Exhibit 'A' and made a part thereof. Provisions of the will of Mrs. Godwin, in so far as material here, were as follows: 'Item Three. I give and devise my home place, being the two-story brick dwelling where I now live and the lot on which the same is situated, to my beloved husband, F. W. Godwin, and my son, Albert Henderson, as trustee for his children born and to be born, to be held and enjoyed as follows: My said husband and son (trustee for his children) are to have the entire control and management of said property, and shall rent the same, pay all taxes, insurance, and repairs out of the rents accruing therefrom; and after the payment of said expenses and maintenance of said premises, the net proceeds from the rent of same shall be divided as follows: one-half (1/2) to my said husband, and the other half to be given to my said son in trust for the support of his said child or children and not subject to his individual debts,--past, present, or future. If my said husband and son as trustee should agree, they may sell said property at private...