Brannan v. Mobley, (No. 6968.)

• Citation: 150 S.E. 76,169 Ga. 243
• Decision Date: 04 October 1929
• Docket Number: (No. 6968.)
• Parties: BRANNAN . v. MOBLEY, Superintendent of Banks.
• Court: Supreme Court of Georgia

169 Ga. 243

150 S.E. 76

BRANNAN .

v.MOBLEY, Superintendent of Banks.

(No. 6968.)

Supreme Court of Georgia.

Oct. 4, 1929.

(Syllabus by Editorial Staff.)

Russell, C. J., dissenting.

Error from Superior Court, Henry County; G. Ogden Persons, Judge.

Equitable action by R. C. Brannan against A. B. Mobley, Superintendent of Banks. Judgment for defendant, plaintiff's motion for new trial was overruled, and he brings error. Affirmed.

Mrs. Brannan owned certain realty, some of which was in a city and the other in the country consisting of a farm. She also owned an interest in realty which was property of the J. T. Bond estate. She was also holder of ten shares of stock in a bank, and the Bond estate was holder of five shares. The bank having become insolvent, assessments were made by the superintendent of banks against Mrs. Brannan for $1,000, and against the Bond estate for $500. Executions based on these assessments were levied respectively on all the individual property of Mrs. Brannan and on the property of the Bond estate. Statutory claims were separately interposed by several persons to different parcels of the property. The claimants were sons and daughters of Mrs. Brannan. The claim cases were by consent consolidated and tried together. At the trial the plaintiff filed an equitable amendment in aid of the levies. It was alleged that the claimants claimed under deeds executed by Mrs. Brannan; and that the deeds were void as against plaintiff, because they were executed without consideration and for the purpose of avoiding payment of the stockholder's liability. The attorneys of record entered into a compromise, which was carried into effect by a consent verdict and decree. By the verdict and decree rendered on March 21, 1928, the city property and the Bond estate property were found not subject. The rest of the property was found subject, but it was provided that the amount to be paid on both executions should be $700. On August 4, 1928, R. C. Brannan, claimant of one of the parcelscarved out of the farm, Instituted an equitable action to set aside the verdict and decree so far as they related to him and his property, and to enjoin levy and sale of his property thereunder. The alleged grounds of relief were, in substance: That petitioner did not employ the attorney to represent him at the trial, nor did he have knowledge of the agreement to take a consent decree, nor did he consent to the verdict and decree; wherefore he brings this action to set aside the verdict and decree and the execution based thereon, as invalid and void in so far as it relates to him and his property, for the following reasons: (a) There being no appearance by the claimant, the only judgment that the court could render would be a dismissal of the claim, (b) If the claim issue had been tried, petitioner could have shown a good and sufficient title to the property acquired prior to the failure of the bank, (c) If the claim had been dismissed when the case was called, petitioner could have filed a second claim, under which he could have shown his prior title, (d) The consent verdict is based on an amendment made by the plaintiff in fl. fa., in which it is admitted that petitioner's deed antedates failure of the bank, and yet it is alleged that the deed was made for the purpose of defeating the stock assessment. Such allegation on its face is untrue, and is In fact untrue; petitioner would not have consented to the verdict and decree; he had no knowledge of the amendment, which was a "fraud" on him and was intended to deprive him of title to his land. He cannot even protect his title by paying off the execution.

In this equitable action a verdict was returned for the defendant. The plaintiff's motion for a new trial was overruled, and he excepted.

Brown & Brown, of McDonough, for plaintiff in error.

E. L Reagan, of McDonough, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON, J. [1] 1. A ground of a motion for new trial is insufficient which complains of the admission in evidence of testimony of an attorney at law, over the objection, "that, if the witness was employed as an attorney at law to represent" the movant in a prior suit to which the testimony in question related, the "witness is incompetent, under § 5860 of the Civil Code, * * * to testify." The rule contained in this code section is founded on the relation of attorney and client, and has no application where that relation does not exist. In order to get the benefit of the rule, the...