Holman v. Bridges, (No. 5913.)

• Decision Date: 14 December 1927
• Docket Number: (No. 5913.)
• Citation: 165 Ga. 296,140 S.E. 886
• Parties: HOLMAN et al. v. BRIDGES.
• Court: Georgia Supreme Court

165 Ga. 296

140 S.E. 886

HOLMAN et al.

v.BRIDGES.

(No. 5913.)

Supreme Court of Georgia.

Dec. 14, 1927.

(Syllabus by the Court.)

Error from Superior Court, Early County; M. J. Yeomans, Judge.

Suit by J. W. Bridges against Grady Holman and others, Commissioners of Roads and Revenues, and another. Judgment for plaintiff, and defendants bring error. Reversed.

Lowrey Stone and C. L. Glessner, both of Blakely, for plaintiffs in error.

H. A. Wilkinson, of Dawson, for defendant in error.

GILBERT, J. J. W. Bridges filed a petition seeking to enjoin Grady Holman and others, commissioners of roads and revenues, and J. G. Butler, treasurer, of Early county, from paying as per contract of employment, a sum of money to W. A. Fuqua as county demonstration agent. The petition alleged, among other things, that said agent was attached to the department of education and could be compensated only out of educational funds, none of which were in the hands of said treasurer or in control of said commissioners; that a general tax of five mills was levied by said commissioners for 1926 for educational purposes in said county; that said fund was collected by the tax collector and paid to the county school superintendent; that said commissioners had no authority to issue warrants against said fund; and that said commissioners had no funds on hand or in prospect with which to pay said agent. On presentation of the petition the judge issued a rule nisi requiring the defendants to show cause at Dawson, Ga., in Terrell county, on a stated day, why the prayers of the petition should not be granted. The defendants appeared at Dawson at the required time and presented a demurrer to the petition and a plea of res adjudicata. The plaintiff demurred to the plea. Over objection of the defendants, based upon the ground that, under the constitutional provision in Civil Code 1910, § 6540, the court was without jurisdiction to render a judgment on said demurrers in Terrell county prior to the appearance term of the superior court of Early county, the court sustained the demurrer to the plea, and overruled the demurrer to the petition. The court also granted the injunction and overruled the defendants' objection to the allowance of an amendment to the petition. Error was assigned upon these judgments. The plea of res adjudicata was based upon a judgment rendered in 1924, sustaining a general demurrer to a petition brought by other citizens and taxpayers of Early county against the board of commissioners of that county, to enjoin the payment of a salary to Fuqua as county farm demonstrator. The suit was brought by different plaintiffs but against the same person as treasurer, though against different persons as county commissioners, and for the same purpose. The record shows that said former suit was filed in Early county, and that the judgment on demurrer was had in Terrell county, just as in the present case.

1. The suit is in equity. Under the allegations respecting the residence of the defendants, it was properly filed in Early county. At an interlocutory hearing in Terrell county, the court granted a temporary injunction and also rendered judgments on the demurrers as above stated. Had the judgment gone no further than to grant the injunction, jurisdictional difficulty would not have been encountered. Semmes v. Columbus, 19 Ga. 484; Burchard v. Boyce, 21 Ga. 6. The defendants objected to the rendition of judgment on the demurrers, on the ground that the hearing was without the county of the residence of the defendants where the suit was filed, but in another county, and that the court was without jurisdiction. The objec-tion was overruled, the court placing his decision upon the act of 1925 (Ga. Laws 1925, p. 97). That act expressly provides that decisions on demurrers may be rendered "at any interlocutory hearing before the appearance term." It does not undertake to otherwise enlarge the powers of the court, and does not make reference to the place where such hearings and decisions may take place. Did the court err in thus ruling on the demurrers? The answer depends upon whether hearing and rendering judgment upon a demurrer to a petition or to a plea of res adjudicata is trying the case. The Constitution of Georgia declares:

"Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." (Italics ours.) Civil Code 1910, § 6540.

The word "trial" as applied to a proceeding in court has been repeatedly defined with reference to different statutes, and in these circumstances the courts have given a variety of meanings, depending upon the particular statute. 3 Bouvier Law Diet. 3320; 4 Words and Phrases, Second Series, 1006. In Bouvier it is said:

"Undoubtedly the word 'trial' in the common law meant the examination and determination of the case upon the facts, and the word was usually applied to a trial by jury; 'hearing' was used with respect to cases in equity. The word 'trial' is now used not only colloquially but by courts with a more comprehensive signification, and it has been defined to be 'the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue.' Finn v. Spagnoli, 67 Cal. 330, 7 P. 746."

In Castellaw v. Blanchard, 106 Ga. at p. 100, 31 S. E. S03, this court, dealing with the word "trial" and with reference to a statute said:

"Is the word 'trial' there used in its broad and comprehensive sense— 'the investigation and decision of a matter in issue between parties before a competent tribunal; including all the steps taken in the ease from submission to the jury to the rendition of the judgment, ' or is the word there used in its restricted sense— 'the investigation of the matter of fact in issue'? Anderson's Law D. Trial. In our opinion the word as used in that section is to be given only its restricted meaning, that is, the sense in which it is used by Sir William Blackstone when he says: 'Trial then is the examination of the matter of fact in issue; of which there are many different species, according to the difference of the subject, or thing to be tried.' 3 Black. Com. 33."

The Supreme Court of the United States, in Carpenter v. Winn, 221 U. S. 533, 31 S. Ct. 683, 55 L. Ed. 842, held that:

"The word 'trial' * * * refers to the final examination and decision of matter of law as well as facts, for which every antecedent step is a preparation."

The question in that case was whether, under the federal statute providing for the production of books or writings "in the trial of actions at law, " the court could compel the production of the same "in advance of the trial." The court held that the words "in the trial" referred to the final trial on the issue of law and facts. The rule first quoted is from a headnote. In the opinion Mr. Justice Lurton discusses the meaning of the word "trial" at length. He says:

"Blackstone defines 'trial' to be the examination of the matters of fact in issue. 3 Black. Com. 350. This definition is adopted by Bouvier. In Miller v. Tobin, 18 F. 609, 616, Judge Deady applied this meaning to the removal act, saying: 'Trial is a common-law term, and is commonly used to denote that step in an action by which issues or questions of fact are decided.' But the word has often a broader significance, as referring to that final examination and decision of matter of law as well as fact, for which every antecedent step is a preparation, which we commonly denominate 'the trial.' Many cases are cited for this definition in 28 Am. & Eng. Ency. p. 636. But this does not help out those who would broaden the meaning so as to justify an order to produce before such judicial examination of both matters of fact and law which constitute that final step which is called 'the trial.' "

A few of the state courts have arrived at similar conclusions, but the decisions are based upon statutes and constitutional provisions which are not identical with ours.

The function of a demurrer is to test the sufficiency of the pleadings. Hicks v. Beach-am, 131 Ga. at p. 93, 62 S. E. 45. The Code giving the judge jurisdiction to hear demurrers in vacation, "it necessarily follows that he would have authority to allow amendments to the bill in order to perfect it and to meet the grounds of demurrer." De Lacy v. Hurst, 83 Ga. 227, 9 S. E. 1052, 1053. "The rules of pleading have been adopted partly with a view of saving both the parties and the public the trouble and expense of an unnecessary trial." Warren v. Powell, 122 Ga. 4, 49 S. E. 730. There is no good reason why the litigant should be allowed to proceed...