Ford v. Milhollin

• Decision Date: 08 October 1946
• Docket Number: No. 15600.,15600.
• Citation: 40 S.E.2d. 376
• Parties: LANK FORD et al. v. MILHOLLIN et al.
• Court: Georgia Supreme Court

40 S.E.2d. 376

LANK FORD et al.

v.MILHOLLIN et al.

No. 15600.

Supreme Court of Georgia.

Oct. 8, 1946.

Rehearing Denied Nov. 15, 1946.

Syllabus by the Court.

1. The provisions of the Code, § 85-1515, have no application to a judgment rendered against a party, who is absent from the State, but represented by counsel of his own selection, he being capable of doing so, and where his counsel is present and litigates the issues then adjudicated. The presence of such counsel who had full authority to represent the client, and who litigated the issues determined by the judgment, was the equivalent of the client's presence.

2. All grounds for review incorporated in a prior writ of error, or grounds which were known, or by the exercise of ordinary diligence could have been known, and were not incorporated therein, will not be considered on a subsequent writ of error.

3. The judgment of a trial court which has been affirmed on writ of error to the Supreme Court will not be set aside afterwards on a ground incorporated in the writ of error or upon a ground which was known, or by the exercise of ordinary diligence could have been known, so as to have been incorporated therein.

4. A decision by the Supreme Court is controlling when the case reaches this court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case.

5. Before a court would be authorized to re-examine a case and render a judgment different from the one complained of, the pleaded facts must be sufficient to authorize the court to do so. The pleaded facts here do not show such a change.

6. The other assignments of error are without merit.

Error from Superior Court, Coffee County; Walter Thomas, Judge.

Suit by Retta M. Lankford and others against J. H. Milhollin and others, for an accounting and for rents and profits for properties owned by the parties as coten-ants, wherein the defendants filed a cross-action for partition by sale of the common property. To review a judgment for defendants on their cross-petition, the plaintiffs brought error to the Supreme Court. The Supreme Court, 37S.E.2d 197, affirmed the judgment. Thereafter four of the plaintiffs filed a motion to vacate and set aside the judgment because of their absence from the state at the time it was granted, and prayed for a temporary and permanent injunction and to have order for partition by sale declared void. To review a judgment refusing an interlocutory injunction, those plaintiffs bring error.

Judgment affirmed.

Retta M. Lankford, Jesse A. Lankford, Arthur G. Lankford, Henry M. Lankford, and Willie H. Lankford brought an equitable action in the Superior Court of Coffee County against J. H. Milhollin, Rilza T. Holton, N. E. Holton, Amanda Brice Tanner, Ralph W. Griffin, H. L. Shannon, and L. C. Alderman. Their petition as amended alleged: The plaintiffs jointly own an undivided half interest in a certain described tract of land located in Coffee County, and claim a special lien on the other half for rents, issues, and profits due them by J. H. Milhollin, N. E. Holton, Rilza T. Holton, and Amanda Brice Tanner. Amanda Brice Tanner owned an undivided half interest in that portion of the tract known as the filling-station part, and J. H. Milhollin and N. E. Holton own an undivided half of the remaining portion of the tract known as the sales-stable part. The defendants Griffin, Shannon, and Alderman, as commissioners, were preparing to advertise and sell the whole tract under a decree rendered in the Superior Court of Coffee County on April 16, 1945, in case number 1776, directing a partition by sale, and unless restrained will do so. W. C. Lankford was sole counsel for the plaintiffs and also for Mattie L. Lankford, who claims title to the undivided half interest in the tract claimed by Tanner, Mil hollin, and Holton. They have been advised, by their sole counsel that he will cease to represent them prior to any sale, so that he may properly represent the interest of his wife, Mattie L. Lankford, and make necessary declarations for her at the sale. Arthur C. Lankford was in the Navy, and Willie H. Lankford was in the Army. It would be necessary for them to be present to arrange for other counsel and to take such other action as would be necessary to protect their interest in the pending litigation and at the proposed sale. Rilza T. Holton, in addition to her joint liability with others, is due them a sum in excess of $10,712 as principal and interest for rents, issues, and profits received by her from the use of their interest in said tract, and she is insolvent. N. E. Holton is either insolvent or has concealed his property so as to make it difficult and expensive to recover any amount from him. Amanda Brice Tanner would find it difficult, if not impossible, to pay any large amount recovered against her. The plaintiffs were not served with a copy of the petitions for partition, which were filed as cross-actions in their equitable proceeding for accounting (Case No. 1776), nor did they acknowledge or waive service, and no one was authorized to do so for them. The filing of such cross-actions in an equitable case, while sufficient without service to make them a part of that case, were insufficient without service to give the court jurisdiction to try the issues made thereby, separate and before the trial of the issues contained in the accounting case wherein they filed cross-actions, and for that reason the order for partition by sale was void. The cross-actions were filed and the order for partition by sale was granted while three of the plaintiffs, Henry M. Lankford, Willie H. Lankford, and Arthur C. Lankford, were in military or naval service, and out of the State of Georgia. Retta M. Lankford was absent from the State and in the City of Washington, when the order for partition by sale was granted. Because of such absence from the State when the order for partition by sale was granted, it was void as to these four named plaintiffs, and within twelve months from the time it was granted these four plaintiffs filed a motion in the superior court of Coffee County to

[40 S.E.2d. 878]

vacate and set aside said order for this reason among others. Only the plaintiff, Jesse A. Lankford, was in the State of Georgia when the order for sale was granted; and since the other plaintiffs were not bound by it, there was such a nonjoinder as would prevent Jesse A. Lankford and his interest in the land from being bound by it. The allegations contained in the cross-actions and the amendments for partition were wholly insufficient to state a cause of action for the relief sought and to support the order for partition by sale; and the judgment, being void for that reason, could be set aside at any time within three years from the date granted. The defendants are estopped from insisting on a sale of said land prior to a trial of the accounting case, because their counsel of record misled and deceived counsel for the plaintiffs, by representing to him orally and by letters that the accounting case and the partition proceeding was one and the same case and should be tried together. They relied on that representation and did not insist on the trial of the accounting case while the partition feature was being continued. The plaintiffs have recently amended their accounting case for rents, issues, and profits, and prayed that the judgment for the amount found to be due them be declared a special lien against the interest in said tract of land now claimed by the defendants. The defendants have threatened to speed up the sale of said land to prevent any special lien in favor of the plaintiffs from attaching to the interest which they claim, and to prevent any general judgment against them which may be rendered in the accounting case from becoming a lien thereon. Since Mrs. Rilza T. Holton is solely liable to the plaintiffs for a large amount of the rents, issues, and profits due for the use of their land, and is insolvent, a general judgment against her would be worthless; but a special lien for the amount due by her against the land claimed by the defendants would be good, if the undivided half interest in the land which they claim is worth that amount and there are no superior liens. A special lien against said undivided half interest in the whole of said tract should be decreed in favor of the plaintiffs for whatever amount is due the plaintiffs for rents, issues, and profits; and this could not be done if the defendants were allowed to sell said land before the trial of the accounting case. If the accounting case should be tried before the sale and the special lien of the plaintiffs established for the amount found to be due them, it will enable them to bid much more for the land than they will otherwise be able to do. If the land should be sacrificed because of the inability of the plaintiffs to bid at the sale, those defendants who are solvent will have to pay large sums on judgments, which the plaintiffs would use liberally while bidding if they were special liens against the property being sold. A sale of said property would be inequitable, since the plaintiffs own an undivided half of the same and the other half is worth far less than the amount due them by the defendants for rents, issues, and profits; and by a sale of the property before the trial of the accounting case they will be placed in the position of having to borrow money with which to buy their own property; and allow the same to remain in the registry of the court until all conflicting claims between the parties are adjudicated. The defendants have not done equity, and for that reason have no right to come into a court of equity and secure on their cross-actions a judgment for partition by sale. The defendants are estopped from selling the land, because they have refused to surrender any possession of the same to the...