Jenkins v. Nolan

• Court: Georgia Supreme Court
• Writing for the Court: Bleckley, Chief Justice
• Citation: Jenkins v. Nolan, 79 Ga. 295, 5 S.E. 34 (Ga. 1887)
• Decision Date: 31 October 1887
• Parties: Jenkins et al. vs. Nolan, executor.

79 Ga. 295

Jenkins et al. vs. Nolan, executor.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Practice in Superior Court. Demurrer. Injunction. Debtor and Creditor. Principal and Surety. Parties. Levy and Sale. Before Judge Lumpkin. Henry Superior. Court. April Term, 1887.

Reported in the decision.

A. M. Speer; John D. Stewart; John I. Hall, for plaintiffs in error.

R. T. Dorset, for defendant.

Bleckley, Chief Justice.

In September, 1869, Lemon (the defendant in the present bill, who has died pending the cause, and is now represented by Nolan as his executor) filed a bill against Mrs. Jenkins and her children (the complainants in the present bill) and several others, alleging that he was executor, creditor and surety of his testator, and praying that certain land claimed by Mrs. Jenkins under a deed of gift dated in August, 1863, from his testator (who was her father), might be set aside, and the land be subjected to the payment of the testator's debts, including the debt to him and the one for which he was liable as surety. Healso prayed for direction in the execution of his trust as executor, and for general relief. A decree upon that bill was rendered in October, 1872, upholding the deed of gift, declaring the land not subject to the testator\'s debts, nor assets in the hands of the executor, and adjudging that the premises be recovered for the uses declared in the deed, the jury finding expressly that, at the date of the deed, the testator had property enough to pay all the debts against his estate. This decree was afterwards affirmed by the court that rendered it, on a bill of review, the case having, in the meantime, come up to this court chiefly on certain questions touching a third competing title to the land. Lemon vs. Jenkins, 48 Ga. 313.

The bearing of the decree upon the decision now about to be made, concerns alone the debt for which Lemon was the surety of his testator. That debt was a liability of the testator, created before the deed of gift was executed, and was sued to judgment against the testator prior to his death, which occurred in 1866. The testator appealed, thereby vacating that judgment, and it was upon this appeal that Lemon became his surety. The testator dying whilst the appeal was pending, Lemon, as executor, was made a party in his stead, and in September, 1869, but a few days before the above mentioned bill was filed, the appeal terminated in a judgment against Lemon both as executor and as surety on the appeal. This judgment, until afterwards amended, was not a judgment de bonis testatoris. It was in no condition, nor was the fi.fa. that issued upon it, to follow the assets of the estate at law, and could only have pursued them, if at all, in equity. The plaintiffs in the judgment were not parties to the bill, and the only representative of the judgment before the court was Lemon, who was personally bound for its payment, certainly as surety, and perhaps also as principal. He, being the sole complainant, made such parties to the bill as he chose, and he neither alleged that he could not induce the plaintiffs in the judgment to join with him as co-complainants, nor made them co-defendants with Mrs. Jenkins and the other defendants.

Before the bill of review above spoken of was filed, which was in February, 1874, Lemon ceased to be executor, and was succeeded by the widow of the testator as administratrix de bonis non cum testamento annexo, and under the influence and by procurement of Lemon, she, with others interested, filed that bill; and the same was finally dismissed on demurrer in April, 1879.

In September, 1873, Lemon caused the judgment against himself as executor and as surety on the appeal to be levied on the land, and Mrs. Jenkins interposed a claim. Sometime thereafter this levy was dismissed or abandoned, neither the judgment nor fi. fa. being against assets of the testator's estate, but only against the property of Lemon, that is, de bonis propriis, not de bonis testatoris. In 1880, however, be procured both to be amended, or the judgment to be amended and a new fi. fa. issued; and then, in March of that year, caused another levy to be made on the land, and Mrs. Jenkins again interposed a claim, which is still pending. It is inferable that Lemon, at some time, paid off the debt to the original plaintiffs, but when does not appear.

In March, 1883, Mrs. Jenkins, in her own behalf and as next friend for her children, filed the present bill against Lemon as a bill of peace, charging in substance the foregoing facts with others, and praying damages for vexatious litigation, and the consequences thereof, and the means used in giving rise to and carrying on the same; also praying to be protected by perpetual injunction from further annoyance, trouble, litigation, etc. The theory of the bill is, that the decree of October, 1872, settled the title to this land for all time adversely to the rights of Lemon, whether as executor, creditor or surety, and especially after the decree was reviewed and confirmed; and that further litigation touching these rights, or drawing her title in question, is useless, unwarranted, vexatious and malicious.

There was an application for a preliminary injunction ofdemurred to the bill substantially for want of equity, the application for a preliminary injunction was (by an order taken in term) set down for hearing at chambers. It was heard accordingly on the bill and demurrer thereto, and the preliminary injunction was granted, but no judgment disposing of the demurrer was rendered, or if rendered, is not in the record. This was in July, 1884.

At the April term, 1886, the bill came up for final hearing, when the defendant renewed his demurrer, to which the complainants objected because, as they contended, the demurrer had been passed upon when the injunction was granted, and that decision and judgment remained of force. The court declined to hear the demurrer, but entertained and granted a motion to dismiss the bill. Both to entertaining and granting the motion the complainants excepted.

1. The first question is, was the case still open to a motion to dismiss the bill for want of equity...