Auld v. Schmelz

• Decision Date: 03 July 1946
• Docket Number: 15519.
• Citation: 39 S.E.2d 39,201 Ga. 42
• Parties: AULD v. SCHMELZ.
• Court: Georgia Supreme Court

39 S.E.2d 39

201 Ga. 42

AULD v. SCHMELZ.

No. 15519.

Supreme Court of Georgia

July 3, 1946

Syllabus by the Court.

1. While there are some exceptions to the general rule that requires that estoppel or res adjudicata be specially pleaded in the trial court, there is no exception to the rule that estoppel or res adjudicata must be first urged and ruled on by the trial court before the Supreme Court will decide such questions.

2. Since the law authorizes a temporary administrator to sue to collect debts due the estate or to recover personal property of the estate, persons so sued may plead any proper setoff or counterclaim and obtain judgment therefor against the estate represented. The priority of the creditor's claim against the estate, however, is controlled by the law, and is not determined or changed by such judgment.

3. The judgment referred to in the preceding headnote places no liability upon the temporary administrator personally.

The bill of exceptions, brought to this court by Mrs. Ellen K Auld, as administratrix of the estate of Mrs. Gertrude Cox deceased, assigns error on a judgment of the superior court of Fulton County overruling her motion to set aside a judgment of that court rendered against her in favor of R. H Schmelz in the particulars hereinafter mentioned. In Auld v. Schmelz, 199 Ga. 633, 34 S.E.2d 860, this court had under consideration, on a ruling on general demurrer, the question whether or not the trial court erred in refusing to reopen that judgment and allow a petition filed by the present plaintiff in error to be treated as a plea of plene administravit; and for a proper understanding of the question here involved, certain alleged facts as stated in the reported case, supra, and apparently admitted in the briefs of counsel here are pertinent. On October 10 1943, Mrs. Gertrude Cox filed in the superior court of Fulton County an equitable petition against R. H. Schmelz and the sheriff and deputy sheriff of Fulton County to enjoin the prosecution of a dispossessory warrant proceeding instituted against her by Schmelz, and the interference with the petitioner in the removal of a certain building from land owned by Schmelz, and seeking to have her right to remove the building established. Schmelz had executed a lease of a lot to one who, with the consent of Schmelz, transferred the lease to Mrs. Cox. The lease provided that improvements erected upon the lot might be removed upon the termination of the lease with rentals paid. The building here involved was erected by the original lessee, and it was the contention of Mrs. Cox that Schmelz had fraudulently terminated the lease, and that she was entitled to remove the building as personalty. Also involved was the question of unpaid rents, which Mrs. Cox tendered into court, at $35 per month, as provided by the terms of the lease. Mrs. Cox died pending the action, and Mrs. Ellen K. Auld as temporary administratrix, was substituted as the petitioner.

On June 4, 1944, the jury returned a verdict in favor of the petitioner for the building, with the right to remove it, and in favor of the defendant for $630 as rent for the premises with a special lien on the building for such amount, and judgment was entered accordingly. On July 5, 1944, the petitioner consenting, the judgment was amended by adding thereto the following: 'This judgment and decree are rendered against Ellen K. Auld, as temporary administratrix of the estate of Gertrude Cox in her representative capacity; and defendant shall have and recover of plaintiff the sums set forth above, to be levied of the goods and chattels, lands and tenements of the deceased, Gertrude Cox, in the hands of Ellen K. Auld, as temporary administratrix of the estate of Gertrude Cox, for the purposes of administration.'

After the decision by this court in the reported case, supra, affirming the trial court's judgment on demurrer, Mrs. Auld, as temporary administratrix, filed on March 26, 1946, a petition to set aside the judgment as amended in so far as it purports to be a general judgment against her or the estate then in her custody. The petition recited her appointment as temporary administratrix on November 16, 1943, the equitable proceeding in which the building as personally under the lease was sought to be removed by her, the original judgment and the amendment thereto. It further alleged the following: On February 14, 1946, R. H. Schmelz filed suit in the superior court of Fulton County, being Case No. 156,961, against the petitioner, Hartford Accident & Indemnity Company, surety on her bond as temporary administratrix, and Frampton E. Ellis, permanent administrator of the estate of Gertrude Cox, setting forth the judgment in the equitable proceeding, and alleging that the petitioner had failed to pay the judgment, and praying for a judgment of $630, together with interest at 7 per cent from the date of the judgment, against the surety on the petitioner's bond. It appearing on the face of the record that the petitioner is the temporary administratrix of the estate of Gertrude Cox, and therefore having no authority to disburse any funds, and not being subject to suit except by the permanent administrator, Frampton E. Ellis, the court was without authority to enter any judgment against the petitioner except a special judgment binding the building for which suit was filed, and because of this amendable defect appearing on the face of the record the judgment is invalid and should be set aside. The prayers were that the judgment be set aside for a defect appearing on its face, in so far as it purports to be a general judgment against the petitioner in her representative capacity, and that R. H. Schmelz be required to show cause why the relief prayed for should not be granted.

The exception here is to the judgment overruling the motion to set aside the judgment as prayed.

The plaintiff in error concedes in her brief that Mrs. Cox, having brought the equitable action to enjoin the dispossessory warrant proceeding and recover the building, which under the lease was personalty, it would have been within the power of a court of equity to have made the judgment in her favor subject to equities in favor of the defendant with respect to the building itself; but contends that the amended judgment de bonis testatoris against her as temporary administratrix is invalid and unenforceable on its face.

The defendant in error makes in effect two contentions: (1) That, by reason of having assumed a particular position in a judicial proceeding and invoked a judgment and having consented to the amended judgment, she is estopped to have the judgment set aside. (2) That, as shown by the record when the case was before this court in 199 Ga. 633, 34 S.E.2d 860 (supra), the petition filed on August 31, 1944, not only sought to have the judgment reopened and the petition treated as a plea of plene administravit, but contained a prayer that the judgment be vacated and set aside; and that, since this court affirmed the judgment of the trial court sustaining a general demurrer to the petition, the question now raised by the writ of error is res adjudicata.

Powell, Goldstein, Frazer & Murphy, G. S. Peck, and Elliott Goldstein, all of Atlanta, for plaintiff in error.

Mitchell & Mitchell, of Atlanta, for defendant in error.

DUCKWORTH, Justice (after stating the foregoing facts).

1. It is the general rule that an equitable estoppel must be specially pleaded in the trial court. Fidelity Co. v. Nisbet, 119 Ga. 316(7), 46 S.E. 444; McCall v. Fry, 120 Ga. 661, 48 S.E. 200; Irvine v. Wiley, 145 Ga. 867(3), 90 S.E. 69; Askew v. Amos, 147 Ga. 613(1), 95 S.E. 5; DeVore v. Baxter, 155 Ga. 109(3), 116 S.E. 610; Hightower v. Blakely Hardwood Lumber Co., 163 Ga. 776(1), 137 S.E. 22; National Land & Coal Co. v. Zugar, 171 Ga. 228(3), 155 S.E. 7. An exception exists in statutory claim cases. Frick Co. v. Taylor, 94 Ga. 683(2), 21 S.E. 713; Wright v. McCord, 113 Ga. 881(2), 38 S.E. 510; Askew v. Amos, supra. Another exception exists in favor of a plaintiff where the defendant sets up a defense in his answer and the plaintiff relies upon estoppel to defeat it. The plaintiff is thus relieved of the necessity of pleading estoppel because under the Neel Pleading Act, Laws 1893, p. 56, no replication is needed. Brown v. Globe & Fire Ins. Co., 161 Ga. 849, 854(2), 133 S.E. 260; Metropolitan Life Ins. Co. v. Bugg, 48 Ga.App. 363(4), 172 S.E. 829; State Mutual Ins. Co. v. Harmon, 72 Ga.App. 117, 120(2), 33 S.E.2d 105. Nor can a plea of res adjudicata be set up for the first time in the Supreme Court. Durham v. Ramhurst Lumber Co., 145 Ga. 189(1 a), 88 S.E. 932. The record now brought to this court does not show that any plea of estoppel or res adjudicata was filed in the trial court, or that any motion was urged to deny the motion to set aside for any reason. We, therefore, consider the question here presented independently of the doctrine of estoppel or res adjudicata, since it is settled law that a question not raised in the trial court will not be considered here. Durden v. Meeks, 110 Ga. 319, 35 S.E. 153; Barham v. Weems, 129 Ga. 704(3), 59 S.E. 803; Wilson v. Stanford, 133 Ga. 483(5), 66 S.E. 258; Whitney v. Central Georgia Power Co., 134 Ga. 213(1), 67 S.E. 197, 19 Ann.Cas. 982; Mobley v. Russell, 174 Ga. 843, 847(5), 164 S.E. 190; McIntire v. McQuade, 190 Ga. 438, 9 S.E.2d 633; Calhoun v. Babcock Lumber Co., 198 Ga. 74, 83, 30 S.E.2d 872.

2. The question for our decision is whether or not the judgment in favor of the defendant, which was rendered in an action prosecuted by the temporary administratrix, is legal against either the estate represented by the temporary administratrix or against the temporary administratrix individually. The...