Jones v. Hurst

• Decision Date: 20 March 1893
• Citation: 17 S.E. 635,91 Ga. 338
• Parties: JONES et ux. v. HURST, (two cases.)
• Court: Georgia Supreme Court

17 S.E. 635

91 Ga. 338

JONES et ux. v. HURST, (two cases.)

Supreme Court of Georgia

March 20, 1893

Syllabus by the Court.

1. Where a petition is filed against several defendants, and a separate demurrer thereto by one or more of them is overruled, the remaining defendants need not be made parties to, or be served with a copy of, a bill of exceptions assigning as error the overruling of the demurrer mentioned.

2. An equitable petition filed by a sheriff against a number of defendants, one of whom had purchased land sold by the sheriff at public sale, praying for a rescission of such sale, but containing no allegations showing that the sheriff had any right to, or interest in, the rescission prayed for is not aided by the fact that a codefendant of such purchaser, in an answer in the nature of a cross bill, set up allegations which, had they been contained in the petition would have entitled the sheriff to the relief prayed for. The petition itself, containing no allegations which would entitle the sheriff to relief, should have been dismissed on demurrer thereto by the purchaser.

3. Where a demurrer to an equitable petition for want of a cause of action was overruled in vacation, and at the next term an amendment was made to the petition which did not relieve it of the objections raised by the demurrer, and the case was then tried on the merits, resulting in a verdict against the defendants filing the demurrer, who thereupon made a motion for a new trial, pending action upon which a bill of exceptions to the overruling of the demurrer was sued out and transmitted to this court, after which the motion for a new trial was denied, and the same defendants sued out, and brought to this court, another bill of exceptions, referring therein to the one previously filed, and assigning as error the refusal of a new trial, the first bill of exceptions being meritorious, the second was unnecessary. Inasmuch as the petition ought to have been dismissed on demurrer, and the error committed in refusing to do so not having been cured by the amendment subsequently made, the trial was a nullity, and the judgment resulting therefrom, in behalf of the plaintiff, would be vacated by reversing the judgment rendered by the court below in overruling the demurrer. The second writ of error is therefore dismissed, with direction that such dismissal shall not operate to affirm the judgment of the court below on the trial on the merits, but that all parties shall stand as they would have stood had the judgment complained of in the first bill of exceptions been the reverse of what in fact it was, save that the plaintiff in the court below may, at or before the time when the remittitur in this case is made the judgment of the court below, amend his petition, with, of course, the right to all parties to amend then, or subsequently, according to the general law.

Error from superior court, Burke county; H. C. Roney, Judge.

Action by C. W. Hurst against L. E. Jones and others for rescission of a sheriff's sale. From a judgment overruling a demurrer to the complaint, defendants bring error, and also bring error from a judgment on the merits. Reversed on first writ of error. Second writ of error dismissed.

P. P. Johnston, for plaintiffs in error.

Lawson, Callaway & Scales and J. S. & W. T. Davidson, for defendant in error.

LUMPKIN J.

1. The question of practice ruled in the first headnote has heretofore been definitely settled by this court. McGaughey v. Latham, 63 Ga. 67; Bank v. Harrison, 68 Ga. 463. And see Jordan v. Gaulden, 73 Ga. 191.

2. Two separate cases in this court arose from one case disposed of by the superior court of Burke county. The facts involved are numerous and complicated, but we will endeavor to set forth only such of them as are material to an understanding of the rulings herein made. Hurst, the sheriff of Burke county, had in his hands, for collection, a mortgage fi. fa., in favor of Franklin, against Jones. There was also a common-law fi. fa against Jones, in favor of the New England Mortgage Security Company. The sheriff was directed by the attorneys of Franklin to levy upon and sell the mortgaged property, the same being a tract of land. He accordingly made the levy, and advertised the sale for the first Tuesday in February, 1891. Subsequently, but before the day of sale arrived, he received instructions from Franklin's attorneys not to proceed with the sale, but, either overlooking or disregarding these instructions, he proceeded to sell the land on the day named. It was bid off for a trifling sum by Jones, who claimed that he purchased as agent for his wife. The money was paid to the sheriff, and he made and delivered to Mrs. Jones a deed to the land. Afterwards the sheriff filed a petition against Jones and wife, Franklin, and the New England Mortgage Security Company, (the last-named defendant being made a party for reasons not now necessary to be stated,) the main purpose of which petition was to set aside the sale of the land to Mrs. Jones. Without undertaking to set forth the contents of this petition, it is sufficient for the present purpose to remark that it contained allegations which, if true, would be sufficient to set aside the sale, at the instance of the sheriff, if he had gone further, and shown he had any right to, or interest in, the rescission prayed for. His petition, however, was entirely wanting in this respect. He intentionally--and it would seem deliberately--failed to allege that he received and violated the order of Franklin's attorneys to postpone the sale, and the petition, taken all together, amounts to a denial by the sheriff that he had placed himself in a position of liability to Franklin by permitting the land to be sacrificed in the manner stated. Franklin and the security company filed answers in the nature of cross bills; and, being interested in having the sale set aside, they made in these cross bills numerous...