Jenkins v. Nolan

• Court: Georgia Supreme Court
• Writing for the Court: BLECKLEY, C.J.
• Citation: Jenkins v. Nolan, 79 Ga. 295, 5 S.E. 34 (Ga. 1888)
• Decision Date: 11 January 1888
• Parties: JENKINS et al. v. NOLAN et al.

5 S.E. 34

79 Ga. 295

JENKINS et al. v. NOLAN et al.

Supreme Court of Georgia

January 11, 1888

Syllabus by the Court.

Though demurrer be filed and considered, the grant of a preliminary injunction does not adjudicate the demurrer nor bar a motion at the final hearing, to dismiss the bill.

To a bill by an executor for direction, and for relief, in which he is personally interested as creditor and as surety of his testator, he is a party in his individual capacity also, and as such is bound by the decree.

A claimant, who has chosen claim for a remedy to resist a levy may be left to that remedy until after one trial on the direct right involved, though she might have been entitled to maintain a bill of peace had she filed it before adopting the remedy by claim.

Error from superior court, Henry county; LUMPKIN, Judge.

A. M Speer, John D. Stewart, and John J. Hal, for plaintiffs in error.

R. T Dorsey, for defendants in error.

BLECKLEY C.J.

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. He also 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 mean time come up to this court, chiefly on certain questions touching a third competing title to the land. Lemon v. 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 while 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. Some time 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, he 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, 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 of the claim case until the hearing, and the defendant having demurred 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 demur...