Brown v. Truluck
| Decision Date | 25 May 1977 |
| Docket Number | No. 32104,32104 |
| Citation | 236 S.E.2d 60,239 Ga. 105 |
| Court | Georgia Supreme Court |
| Parties | Bill B. BROWN et al. v. Mona Sue TRULUCK et al. |
Nixon & Nixon, John P. Nixon, Warner Robins, for appellants.
Harmon & Wells, James H. Harmon, Warner Robins, for appellees.
This case arose out of an action in the Superior Court of Marion County to partition a 192.5 acre tract of land in that county. The relevant facts, which are undisputed, follow: The appellee, Mona Truluck (formerly Brown), was divorced from her husband, Willie B. Brown, and in the decree was awarded an undivided one-half interest in the subject lands, the record title to which had been, prior to that time, held by her husband. In the divorce proceedings the two minor children were unrepresented as to any interest they might have had in this property. Subsequent to the divorce, Mrs. Truluck filed this action to partition same. Following filing of the complaint, against her former husband, Bill B. Brown and Bob R. Brown, the two children of Willie and Mona Brown (now Truluck), and appellant-intervenors herein, now of age, filed a petition for intervention which was allowed by the court. In their petition they allege that their parents had voluntarily promised and assured each of them a one-fourth interest in the subject lands. A jury trial was held and evidence was introduced by the parties as to the interest of the plaintiff, the defendant and the sons in the property. At the conclusion of all the evidence the court directed a verdict against the intervenors' claims and it is from this verdict and the subsequent order dismissing them as parties they appeal, and assign error.
Under Section 24 of the Civil Practice Act, Code Ann., § 81A-124(a), a person shall be permitted to intervene "when the applicant claims an interest relating to the property or transaction which is the subject-matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." As recognized by the Court of Appeals in Lynn et al. v. Wagstaff Motor Company, 126 Ga.App. 516, 517, 191 S.E.2d 324, 326 (1972), An applicant will not be permitted to intervene in an action unless he can establish: (1) an interest relating to the property or transaction which is the subject matter of the action, (2) an impairment of his interest which may result from an unfavorable disposition of the lawsuit to which intervention is sought, and (3) inadequate representation of this interest by the parties now involved in the lawsuit.
In the present case, appellants must have first established an interest in the property in order to intervene under the statute. This, we believe, they failed to do.
In their pleadings the appellants stated that their petition for intervention rested upon a theory that they had each been conveyed a one-fourth interest in the property as a result of voluntary promises made by their parents. They had no deed. The theory of a gift, which is now raised by appellants in support of their enumeration of error, was neither raised in the pleadings nor brought out at the trial. In fact, when confronted by the court as to whether they were claiming an interest by way of gift or voluntary promises the following discussion took place in open court but outside the presence of the jury:
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...inferences that are to be drawn from the evidence is it proper for the trial judge to withhold the case from the jury. Brown v. Truluck, 239 Ga. 105, 236 S.E.2d 60 (1977); Plough Broadcasting Co. v. Dobbs, 163 Ga.App. 264, 293 S.E.2d 526 (1982). This is truly a fortiori when there are prese......
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