Davis v. Gardner

• Decision Date: 28 February 1883
• Citation: 70 Ga. 517
• Court: Georgia Supreme Court
• Parties: Vason & Davis. vs. Gardner, trustee.

70 Ga. 517

Vason & Davis. vs. Gardner, trustee.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Practice in Supreme Court. Practice in Superior Court.

Trusts. Pleading. Judgments. Before Judge Crisp. Lee Superior Court. March Term, 1882.

Reported in the decision.

Hawkins & Hawkins; Vason & Alfriend; John C. Reed, for plaintiffs in error.

Fred. H. West, for defendant.

Hall, Justice.

In February, 1858, Granniss, as administrator of Kennedy, brought ejectment against Herron for lot of land 144, in 13th district of Lee county, and for mesne profits. Herron dying in 1870, at the March term, 1871, of Lee superior court his death was suggested, and an order was taken to make James Gardner, of Richmond county, who was alleged to be the real defendant, a party in his stead, and directing that he be served with a copy of the declaration and process twenty days before the next term of the court; and this service was perfected on him 1st of September, 1871. In October, 1872, service was again perfected on Gardner, and also on his wife, and they appeared and answered to the suit by pleading title by prescription, and the general issue. The case coming on for a hearing, the plaintiffs had a verdict for the premises and a large amount of mesne profits.

A motion was made for a new trial, which was refused, and thereupon the case was brought to the July term, 1876, of this court, where the judgment of the court below was reversed, and a new trial awarded. 57 Ga., 539.

Pending the motion for a new trial in the court below, James Gardner died, and his death being suggested of record, and it being stated that Burwell Gardner was " trustee for the property in controversy, " he was, by the consent of parties, ordered to be made a party in lieu of James Gardner, deceased. Subsequent to the reversalof the judgment below by this court, another trial was had and a verdict rendered in favor of the defendant in the ejectment suit.

1. The propriety of making Burwell Gardner a party defendant to this suit is not apparent to us; it does not seem that he was in any way the successor of James Gardner, who, while in life, defended as James Gardner, in his individual right, and not as trustee for any one, together with his wife, who, for aught that appears to the contrary, was still in life, and being discovert by the death of her husband, was capable in her own name and right of conducting this defence, and indeed, as survivor, was the proper party to carry on this litigation. She does not appear to have been dropped from it, or to have relinquished any right she had to conduct it, and it is not altogether certain that she was ever consulted or gave her consent to the arrangement by which Burwell Gardner, as trustee, was made a party to the suit.

2. At the termination of this suit, Vason & Davis brought an action against Burwell Gardner, " as trustee for Mrs. James Gardner and her children, " for the recovery of one thousand dollars, besides interest, which they claim was due them for services rendered as attorneys at law, in the above mentioned ejectment suit. The declaration sets forth that Mrs. Gardner and her children were the owners of two plantations in the county of Lee, and that one of them included the lot of land in question. It does not state, however, either the terms of the trust under which these plantations were held for them, or who were the beneficiaries of this trust, or the amount and character of interest that each or any of them had in the alleged trust property. They state that they were employed to defend by the trustee, and that they claim a debt for the amount sued for, with interest, "against the property of the trust estate, " and pray process against " the defendant, Burwell Gardner, as trustee." This writ was served on Burwell Gardner, who appeared and plead the general issue, non assumpsit. " in manner and form as the plaintiffs in their declaration complain against him." The case was tried at the March term, 1882, of Lee superior court; and on the 13th day of that month, after hearing the evidence, the court awarded a non-suit, " for the want of sufficient proof to carry the case to the jury, " as alleged in the order.

On the 17th day of April, 1882, the plaintiffs tendered to the presiding judge a bill of exceptions, in which the only error assigned was the " granting of the non-suit in said case, " and which he then refused to sign and certify, because it "did not contain all the necessary facts, and was not true as stated." He did, as required by Code, §4257, return the bill of exceptions to the parties, but did not state specifically his objections thereto in writing, any further than as above indicated; however, on that day he ordered notice to the opposite party of the fact that the bill of exceptions tendered was not true, and did not contain all the evidence material to a clear understanding of the case, and of the time of tendering the same, and appointed the 5th day of May then next ensuing, to hear evidence of the truth of such exceptions, that the same might be certified. This notice was, on the day it was given, duly served on counsel for defendant in error, and on the day mentioned for hearing evidence, the counsel for defendant in error furnished divers corrections of the...