Gentle v. Georgia Power Co.

• Court: Georgia Supreme Court
• Writing for the Court: GILBERT, Justice.
• Citation: Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (Ga. 1934)
• Decision Date: 11 December 1934
• Docket Number: 10466.
• Parties: GENTLE v. GEORGIA POWER CO.

177 S.E. 690

179 Ga. 853

GENTLE v. GEORGIA POWER CO.

No. 10466.

Supreme Court of Georgia

December 11, 1934

Syllabus by the Court.

1. In so far as the present petition sought a recovery of damages for the alleged tort which was the basis of the original action, it was not maintainable. No sufficient reason is shown why the first action was void. The plaintiff cannot concurrently maintain the two actions for the one cause.

2. The fact that twenty years had elapsed since the filing of the original motion for a new trial, during which time it was never prosecuted, the plaintiff being an infant during almost all of that period, did not affect the validity of the original motion.

3. The pendency of the motion for a new trial did not debar the plaintiff from prosecuting the present action in so far as it was sought to vacate the original verdict and judgment for matters cognizable by a court of equity.

4. That part of the petition which attacked the former verdict and judgment, although based on matters not appearing on the face of the record or pleadings of the former suit, was not a motion for a new trial. No brief of the evidence adduced on the former trial was duly approved.

5. The petition, in seeking to vacate the former verdict and judgment, invoked the powers of a court of equity; and, as all the charges in it of fraud, breach of duty, etc., are general in character, there being entirely absent a statement of any specific facts or occurrences from which a conclusion of the existence of fraud, collusion, breach of duty, or other similar matter would logically follow, the court did not err in dismissing it on general demurrer.

6. The authorities cited by the plaintiff have been examined and found not contrary to the rulings here made.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Petition by L. C. Gentle against the Georgia Power Company. To review a judgment sustaining a general demurrer to his petition plaintiff brings error.

Affirmed.

E Harold Sheats and Marion Williamson, both of Atlanta, for plaintiff in error.

Colquitt Parker, Troutman & Arkwright and Harllee Branch, Jr., all of Atlanta, for defendant in error.

GILBERT Justice.

In 1914 the plaintiff, then an infant 3 years old, brought an action through his next friend against the corporation which is alleged to be the predecessor of the defendant. Two trials were had, the last resulting in a verdict for the defendant. A motion for a new trial was filed by plaintiff, but was never disposed of. In 1934 the plaintiff, having attained his majority, brought the present suit. The defendant demurred to the petition generally and specially. The court sustained the demurrer, and the plaintiff excepted.

1. In this state a suit by an infant is not void. Civ. Code 1910, § 5524. The bringing of such a suit through a next friend is clearly recognized by our practice. Section 5416. As bearing on the legal status of such a case and the legal effect of a judgment rendered therein, see Evans v. Collier, 79 Ga. 319, 4 S.E. 266. "It would seem from the authorities that there is no substantial difference between a prochein ami [next friend] and a guardian ad litem. The former denomination is usually applied when the representation is for an infant plaintiff, and the latter when it is for an infant defendant. But in either case, the representative of the infant is regarded as an officer of court. Story's Eq. Pl. [10th Ed.] §§ 57, 58, note 2." Sharp v. Findley, 59 Ga. 722, 729. The infant's nearest relation is supposed to be the next friend. Sanders v. Hinton, 171 Ga. 702, 707, 156 S.E. 812, and citations. The appointment is primarily for the court, but usually the infant in his petition names the next friend, and the court by allowing the action to proceed ratifies the appointment. An infant is bound by a judgment entered in a case brought by him through a next friend as though he were an adult; this in the absence of gross laches or fraud or collusion. Kansas City & R. Co. v. Morgan, 76 F. 429, 21 C.C.A. 468; Coalson v. Tooke, 18 Ga. 742; Evans v. Collier, supra; Reeves v. Lancaster, 147 Ga. 675, 95 S.E. 246; Dampier v. McCall, 78 Ga. 607, 3 S.E. 563. Under the authorities above cited it must be held that, in the absence of a definite showing of some equitable reason to the contrary, the action brought in 1914 was well brought, and that the verdict and judgment last rendered in it are binding until set aside, Long delay in the prosecution of the motion for a new trial which was filed does not affect the situation. A presumption of abandonment of an action by long delay in prosecution sometimes arises. 1 C.J. 1169. But it would seem clear that mere inaction on the part of this next friend, even for twenty years, would not bar the plaintiff's right to prosecute the motion, because all that time he was still an infant. No specific act of the adverse party is alleged with sufficient definiteness to show a cause for delay in prosecuting the original case. If an action is brought by an infant through a next friend, and the infant comes of age before the cause is finally disposed of, the action does not abate. It may proceed in the infant's name, and the next friend is no longer a necessary party. 31 C.J. 1156. No sufficient reason is shown why the original action was void. The plaintiff cannot concurrently bring the two actions for the one cause.

2, 3. The second and third headnotes require no elaboration.

4. The petition in this case cannot be treated as a motion for a new trial. A motion for a new trial must be accompanied by a brief of the evidence adduced on that trial. Without that essential, the motion is without the breath of life. Lovelace v. Lovelace, 179 Ga. ---, 177 S.E. 685, and Lucas v. Lucas, 179 Ga. ---, 177 S.E. 684. Moreover, the petition was filed many years after the closing of the term of the court during which the verdict was rendered. This also presents an immovable legal obstacle to its effectiveness as a motion for a new trial.

We will now inquire if the petition alleges any basis for equitable jurisdiction. In a proper case, based upon sufficient cause, equity has jurisdiction and will set aside a verdict and judgment. In Griffin v. Sketoe, 30 Ga. 300, 305, the court quoted from Lord Redesdale in Bateman v. Willoe, 1 Sch. & Le. 205: "When a verdict has been obtained by fraud, or whenever a party has possessed himself improperly of something, by means of which he has an unconscientious advantage, equity will either put it out of the way or restrain the party from using it." See, also, Dodge v. Williams, 107 Ga. 410, 33 S.E. 468; Gulf Refining Co. v. Metter, 151 Ga. 721, 108 S.E. 25; Williamson v. Haddock, 165 Ga. 168, 140 S.E. 373; Bryant v. Bush, 165 Ga. 252, 140 S.E. 366; Sylvania Ins. Co. v. Johnson, 173 Ga. 679, 160 S.E. 788; Lovelace v. Lovelace, supra. One of the earliest cases in our reports in which the present subject is considered is Taylor v. Sutton, 15 Ga. 103, 105, 60 Am.Dec. 682. There was a verdict and judgment in an ejectment suit, and the case arose on a bill in equity to set the judgment aside and have a new trial ordered. Judge Lumpkin gives a short but interesting story of the new trial practice, and refers to the former liberality of courts of equity in granting relief against common-law judgments, in contrast with their later reluctance so to do. But the still existing power, when invoked in a proper case, is clearly set out. Civ. Code 1910, §§ 4584, 4585, 4629, 5965, and 5966, are not of statutory origin. They are but codifications of matters embraced within the general powers of a court of equity. The jurisdiction to which they specifically refer dates back long years before there ever was a Georgia Code. The word "verdicts" is not to be found in any one of these sections, but it is not thereby to be regarded as excluded by implication. Jurisdiction to relieve against verdicts inequitably obtained exists as certainly as it does against "awards, judgments, and decrees obtained by imposition." Lovelace v. Lovelace, supra. Of course it goes without saying that one invoking equitable relief against verdicts, as well as against judgments, should meet the usual requirement as to showing that his relief at law would be less adequate than his relief at equity. Under the principles ruled in the cases above cited, the plaintiff in the present proceeding could invoke the power of a court of equity to set aside the verdict and judgment rendered in 1914, provided the facts essential to such relief are alleged. These allegations are made the subject of inquiry in the next succeeding paragraph of this opinion.

5. The petition alleged the details of the tort said to have been committed by the defendant's predecessor in 1914; the filing of the suit through the next friend, petitioner then being 3 years of age and too young to understand anything connected with the suit which he had not authorized to be brought in his name; that the first trial resulted in a verdict for the plaintiff which he claims was grossly inadequate; that a new trial was granted, and on the second trial there was a verdict for the defendant; that a motion for a new trial was filed which had never been disposed of that this was null and void, and was instituted and prosecuted without petitioner's consent; that his rights as an infant of tender years were ignored by the next friend, by the defendant, and by the court itself; that it was the duty of the next friend to exercise diligence, circumspection, and ordinary care to protect petitioner's rights, to see that he was accorded due protection of...