Cox v. Berry

• Decision Date: 30 April 1853
• Docket Number: No. 42.,42.
• Citation: 13 Ga. 306
• Parties: William Cox, plaintiff in error. vs. Jesse Berry et al., defendants.
• Court: Georgia Supreme Court

13 Ga. 306

William Cox, plaintiff in error. vs. Jesse Berry et al., defendants.

No. 42.

Supreme Court of the State of Georgia

APRIL TERM, 1853.

Ejectment, from Gilmer Superior Court. Tried before Judge IRWIN. November Term, 1852.

This case was submitted on an agreed statement of facts. Jesse Berry and others, in March, 1846, brought their action of ejectment against Emanuel Rose, tenant in possession, to which William Cox, as landlord, was made co-defendant.

On the trial, which took place in September, 1849, the plaintiffs failed to prove Rose in possession, and dismissed their case. Within six months they commenced the present action for the same land, against John Welch, tenant in possession, to which also William Cox was made co-defendant. To both actions the Statute of Limitations was pleaded. It was agreed that the first action was commenced six days before the possession of said Cox and his tenants would have protected them under the Statute. It was also agreed that the plaintiffs are now entitled to recover, unless the defendants are protected by the Statute of Limitations.

The Court, on argument, decided that the Statute is not abar to the present action, and that plaintiffs do recover, and this decision is assigned as error.

W. H. Underwood, for plaintiffs in error.

A. J. Hansell, represented by Hull, for defendant.

By the Court.—Nisbet, J. delivering the opinion.

Our attention is directed to the inquiry whether, under the circumstances of this ease, the defendant in the action, Cox, is entitled to the protection of the Statute of Limitations. What are the circumstances? The plaintiff in the ejectment, Jesse Berry, brought suit in 1846, for a lot of land against Emanuel Rose, tenant in possession, to which William Cox was made a party in the usual form, as landlord. There was a verdict for the plaintiff on the first trial, and an appeal. Upon the trial of the appeal in 1849, the plaintiff failing to prove possession in Rose, on that account, dismissed his action. When the suit was instituted, the term of limitation had not expired, but did expire very soon after it was brought. It had fully run when the action was dismissed. Within six months after the dismissal of the suit, the plaintiff again brought ejectment for the same land, against John Welch, tenant in possession, and to this action Cox was also made a party defendant. To both he pleaded the Statute of Limitations. Under these circumstances, the plaintiff in error, Cox, insists that his plea of the Statute of Limitations ought to have been sustained, because the circumstances of the case take it out of the operation of the Act of 1847, which authorizes a party whose case has been dismissed, to re-commence within six months without prejudice from the Statute of Limitations.

The first position taken by the counsel for the plaintiff in error is, that the first action was not a suit or action, and therefore the plaintiff below can take no benefit under the Act of 1847. If it was not the Statute protected Cox on thesecond action, for that was brought confessedly after it had attached in his favor. The argument in support of this position is summarily stated thus: Ejectment can only be brought against the tenant in possession. Upon the trial, Rose, who was sued as the tenant in possession, was not proven to have been in possession; therefore there was no action. This argument was elaborated with Judge Underwood\'s well-known ability. With profound respect for his great learning and experience, we do not admit its conclusiveness. It is conceded to be true generally that the action of ejectment must be brought against the person in possession. That is to say, the plaintiff cannot sustain his action unless he prove possession in the defendant, who is sued as tenant; and if he fails to do this, as he did here, his suit will be dismissed, as it was here. This will be the result, whether the defendant defends alone, or the landlord comes in and defends with him. But it does not follow from this concession that the proceeding is a nullity as to all purposes. The question is, was this an action, so far as Cox is concerned? We think it was. The plaintiff had a right to bring his action against anybody resident in the County, as tenant of the land. The Court had jurisdiction of Rose and of the premises. It was regularly brought; it was not void, ab initio, upon the face of the pleadings. It was subject to be defeated upon the trial, for failure of the necessary proof; but before the trial, Cox upon his own motion, comes into it as a defendant in the capacity of landlord. By so doing, he on his own account, took the position of a party, with all the rights of defence which appertain to such a position. He did defend; he pleaded the Statute of Limitations, and an issue was legally made between himself and the plaintiff, as to his title under that plea. By so doing he recognized the suit of the plaintiff, and acquired all the rights and became subject to all the obligations of a tenant regularly before the Court. Assuming that he has title, by the act of becoming a party he supersedes the tenant, and takes the burden of the contest. The fact is, that his coming in to defend, is only a mode of making a party, peculiar to ejectment causes. He was asmuch a party as he who in other suits is brought before the Court by process and service. One of his rights as a party defendant was to require the plaintiff to make out his case. In doing so, it was necessary to prove the possession of the alleged tenant. Failing to do this, his cause is dismissed. But does that prove that the case was not a suitable action against Cox? Was the case dismissed because it was not an action against Cox? No, but because the plaintiff failed to establish by proof a fact which the law requires him to prove. So, in any and all cases, a party plaintiff will be non-suit if he cannot by proof make out the case which the law, sitting in judgment upon his pleadings, holds him bound to make out. But in no case does it follow from thence that the proceeding was not an action. Generally then, we think that the argument of the counsel is untenable. If, however, we were driven, which we are not, to admit that for all purposes this was not a suit or action, we are clear that it was a case, in the intent and terms of the Act of 184...