Brewer v. Williams

• Decision Date: 09 February 1954
• Docket Number: No. 18438,18438
• Citation: 210 Ga. 341,80 S.E.2d 190
• Parties: BREWER v. WILLIAMS et al.
• Court: Georgia Supreme Court

Page 190

80 S.E.2d 190

210 Ga. 341

BREWER v.WILLIAMS et al.

No. 18438.

Supreme Court of Georgia.

Feb. 9, 1954.

On October 4, 1951, Williams and Templeton, a partnership composed of two named persons, brought their petition in equity in the Superior Court of Toombs County, against E. K. Brewer, a resident of that county, wherein they alleged: that they were the owners of all timber on a described tract of land purchased by them under lease contract from one C. W. Brewer, which lease was transferred by them to St. Mary's Kraft Corporation, to secure an advancement made by that company on the lease to the petitioners; but that the petitioners have a direct, immediate concern, interest, value, and right in and to said lease, the timber therein described, and the profits to be derived therefrom, and are entitled in equity to protect such rights by the relief sought by the petitioners; that they have two crews of five men each cutting timber on said tract of land under the direction of two named persons; that the defendant has threatened to run the employees of the plaintiffs off of said tract of land; that said employees are Negroes and not well informed of business and legal affairs, and because of the defendant's threats, do not work regularly and are afraid to cut timber when the defendant is around; that said threats and intimidation by the defendant interfere with the operation of the plaintiffs in cutting the timber from the described land; that on October 1the defendant threatened the employees working under the two named persons with physical violence if they did not leave the premises and stop cutting the timber; that the plaintiffs paid $15,000 for the said lease and will lose thousands of dollars if the above described acts of the defendant are allowed to continue, and will be irreparably damaged if the defendant is not enjoined from interfering with the plaintiffs' employees, and the petition prayed: (1) for process; (2) for an ex parte restraining order restraining the defendant from interfering with the employees of the plaintiffs; (3) that the defendant be temporarily enjoined from interfering with the employees of the plaintiff; (4) that the defendant be permanently enjoined from interfering with the plaintiffs' employees; (5) for a rule nisi; and (6) that the defendant be required to serve plaintiffs or their attorneys with copies of all pleadings and affidavits to be used at the hearing at least three days before the date set for said hearing.

Upon presentation of the petition, an ex parte restraining order was granted as prayed, and the defendant required to show cause on October 13, 1951.

On October 8, 1951, the defendant filed his answer and cross-action, in which he admitted the execution of the lease by his brother to the plaintiffs, but alleged; that he was the procuring cause thereof, at the request of the plaintiffs, and that, because of his services in securing the lease for the plaintiffs, having the property surveyed, and the title checked, it was orally agreed between the plaintiffs and the defendant that the defendant was to have the exclusive right to cut and remove all timber covered by the lease at a designated price for the various kinds of timber involved; and that, upon his cutting and delivering a sufficient amount of the timber at the prices designated, to reimburse the plaintiffs for the $15,000 paid by them, together with interest thereon at three percent, and attorney's fees, they were to assign to him the remainder of the timber on the described premises, he holding a bond for title from his brother for the land itself; that the plaintiffs had breached his contract by entering upon the land and cutting the timber thereon by their own employees, and had injured and damaged him by reason thereof.And he prayed: that the plaintiffs be enjoined from interfering with him in carrying out his alleged contract; and that he recover of the plaintiffs such amount as may be shown to be due by an accounting.Upon the filing of this answer and cross-action an ex parte restraining order was granted restraining the plaintiffs as prayed.

On the date set for the hearing, October 13, 1951, St. Mary's Kraft Corporation filed its intervention in the proceeding, alleging that the plaintiffs had assigned to it the timber lease contract, in which it reserved the right to enter on and cut the timber from the land; that it elected to do so, and prayed: that it be permitted to intervene in the proceeding; that its rights be established by proper order and decree of the court; that the cross-petition and injunction prayed by the defendant be denied; and for general relief.

Upon the filing of this intervention, the trial judge, 'after the reading of all pleadings, statements of counsel, etc.,' denied the prayer of the defendant for injunctive relief; granted the prayer of the intervenor that the defendant be enjoined as prayed, and authorized the intervenor to proceed with the cutting of the timber described in the lease.

The defendant thereafter filed an amendment to his answer and cross-action, in which he alleged that the intervenor took the assignment of the timber lease from the plaintiffs with knowledge of the contract existing between the plaintiffs and the defendant; that its election to enter upon the land and cut and remove the timber therefrom was not bona fide, but was in furtherance of a fraudulent scheme and conspiracy between the plaintiffs and intervenor to deprive the defendant of his rights under his contract with the plaintiffs; that there had been cut and removed from the land by the intervenor a described quantity of the various kinds of the timber of the value set out in the answer and cross-action, and of much greater value than $15,000; and the defendant prayed: that the plaintiffs and the intervenor be required to transfer to the defendant the timber lease described in the plaintiffs' petition; that the plaintiffs and the intervenor be required to account for all timber cut and removed by them; that the defendant have such judgment for damages against the intervenor and the plaintiffs, either or both, as may be meet and proper; and for general relief.This amendment was allowed and filed on August 9, 1951.

On August 25, 1952, the intervenor filed in court the following document: 'Now comes St. Mary's Kraft Corporation and shows to the court that it no longer has any interest in the timber involved in this action and the intervention is therefore moot and it therefore dismisses its intervention,' upon which an order was entered by the court on November 28, 1952, as follows, 'The above and foregoing dismissal is hereby allowed.'To this judgment the defendant took exceptions pendente lite.

On August 25, 1952, the plaintiffs filed what is termed a plea to the jurisdiction, which, so far as the record before us shows, was not verified, but alleged: 'That the Superior Court of Toombs County, Georgia, does not have jurisdiction of the subject matter of this cross-action for damages, for an entirely and distinct cause of action, being an attempt to recover or recoup damages on an alleged parol contract, whereas the original petition was one based on an action ex delicto, and if said E. K. Brewer has any cause of action against Williams...