Kidd v. Finch
| Decision Date | 14 July 1939 |
| Docket Number | 12799. |
| Citation | 4 S.E.2d 187,188 Ga. 492 |
| Parties | KIDD v. FINCH et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. There is no merit in the motion to dismiss the writ of error or in the suggestion that the Court of Appeals, instead of the Supreme Court, has jurisdiction to determine the case.
2. In a suit in equity to enjoin an action at law and to recover against the plaintiff in that action and others a judgment for property damages and personal injuries alleged to have resulted from the concurring negligence of all the defendants thus sued, the entire controversy as presented in the petition constituted a single case in equity, and it was permissible for one of the defendants to file a cross-action for damages against the plaintiff and the other defendants in such case. Therefore the court erred in sustaining the demurrer to the cross-action as interposed by the codefendants of the complainant therein, on the ground that such a proceeding was not maintainable by one defendant against his codefendants.
3. As to the complainant in the cross-action, the error in sustaining the demurrer thereto rendered the further proceedings nugatory as to all parties so far as related to such cross-action, but did not affect the verdict and judgment as rendered on the main petition, and the answers thereto, in favor of the plaintiff and against defendants other than the complainant in the cross-action.
On February 14, 1937, H. P. Finch was traveling in an automobile on the public highway leading from Atlanta to Covington. Coming in the opposite direction was an automobile driven by Paul Johnson, with whom John F. McGill was riding. This vehicle was being closely followed by another automobile driven by Culver Kidd. A collision occurred, in which all three of the automobiles were involved. In May, 1937, Kidd instituted in the municipal court of Atlanta an action against Finch and Paul Johnson, seeking a judgment for damage to his automobile. In June, 1937, the present suit was instituted in the superior court of Fulton County by Finch against Kidd, Johnson, and McGill, alleging the facts just stated in regard to the collision and the suit in the municipal court. The petition of Finch sought a judgment against all three of the defendants named therein, for damage to his automobile, and for personal injuries alleged to have been sustained by him as result of the collision, which, as he contended, was attributable to the concurring negligence of all three of these defendants. The petition invoked the equitable jurisdiction of the superior court, alleging 'That as said municipal court of Atlanta is a court of limited jurisdiction, and is without jurisdiction to try and give judgment in favor of your petitioner for the personal injuries by him sustained in said transaction, and as your petitioner has no plain, adequate remedy at law on account of such want of jurisdiction on the part of said court, it is necessary that a court of equity intervene and temporarily restrain and permanently enjoin said proceeding now pending in said municipal court, and require all parties hereto to set up their claims in this suit, so that full redress may be had by all parties in a court of competent jurisdiction.' The prayers were (1) to recover stated amounts as damage to plaintiff's automobile and for his personal injuries and pain and suffering; (2) for injunction to restrain the prosecution of the suit in the municipal court; (3) for general relief. Johnson and McGill filed an answer to this suit of Finch denying negligence and liability. The defendant Kidd, who was the plaintiff in the suit in the municipal court, filed an answer to the same effect, and added thereto a cross-action against Finch, Johnson, and McGill, praying for a judgment against all of them for damage to his automobile and for personal injuries which he alleged were sustained by him as result of the concurring negligence of the plaintiff Finch and the defendants, Johnson and McGill. He admitted the allegations of paragraph 16 of the suit by Finch as to the propriety of equitable jurisdiction, and adopted them 'as part of this his answer and cross-bill.' Johnson and McGill demurred to the cross-action of Kidd, urging that there is no provision in law or in equity, and no rule of court, 'through or by which one defendant in an action of this kind may maintain a cross-action or counter-claim against another defendant in the same case.' The court sustained this demurrer and dismissed the cross-action as to the demurrants, on December 8, 1938. To this ruling Kidd excepted pendente lite.
After the sustaining of the demurrer, the case proceeded to trial as to all parties upon the main petition and the answers thereto, but only as between Finch and Kidd upon the cross-action. Upon the main petition a verdict was returned in favor of Finch against Johnson and McGill for $2,000 for personal injuries, and $450 for 'automobile damages,' and in favor of Finch 'against the cross-action of Culver Kidd.' Judgment was entered accordingly. Kidd sued out a direct bill of exceptions under the Code § 6-804, without filing a motion for new trial or presenting a brief of the evidence, on the theory that the final verdict and judgment were controlled by the ruling of the court sustaining the demurrer of Johnson and McGill and dismissing the cross-action as to them. In the bill of exceptions error was assigned upon the exceptions pendente lite to this ruling, and upon the final verdict and judgment as being erroneously controlled by such antecedent ruling. The ruling on the demurrer was entered on December 8, 1938. The final verdict and judgment were rendered on December 16, and December 20, 1938, respectively. The exceptions pendente lite were filed and certified on December 23, 1938. The final bill of exceptions was presented for certification within thirty days from the adjournment of the term at which the verdict and judgment were rendered. Johnson and McGill filed a motion to dismiss the writ of error as to them, urging as grounds therefor that Kidd, in proceeding to trial upon his cross-action against Finch, after the adverse ruling on the demurrer, abandoned his suit against Johnson and McGill, with the result that his assignment of error on the sustaining of the demurrer filed by these parties presented no question for determination; that by such election and trial the cross-action ceased to be a joint one, and became an action for damages for the alleged negligence of Finch alone; and that the attempt in the bill of exceptions to assign error upon the exceptions pendente lite sued out by Kidd after the case was tried on its merits was futile, since the joint action had ceased to exist when Kidd failed to except directly to the judgment sustaining the demurrer; and because, under the facts of the case as stated, there is no provision of law authorizing such exceptions pendente lite.
Allen & Hogg and Scott Hogg, and of Atlanta, for plaintiff in error.
Neely, Marshall & Greene, John I. Kelley, Walter C. Hendrix, E. H. Sheats, W. S. Northcutt, and Edgar A. Neely, Jr., all of Atlanta, for defendants in error.
BELL, Justice (after stating the foregoing facts.)
1. There is no merit in the motion to dismiss the writ of error. The several grounds thereof present in different forms but one substantial question; that is, whether the defendant Kidd, in proceeding to trial upon his cross-action against Finch alone, after its dismissal as to Johnson and McGill should be held to have abandoned the suit against the two last named, with the result that the exception to such ruling should be treated as presenting no existing controversy for determination. Compare Poole v. Southern Railway Co., 34 Ga.App. 290, 129 S.E. 297; Walker v. Central of Georgia Railway Co., 47 Ga.App. 240, 170 S.E. 258. The principle invoked has no application here, for the reason that the complainant in the cross-action was a defendant, in the main suit, and hence could not control its progress. As to that, the plaintiff Finch was the engineer in charge, and the defendant Kidd had no...
To continue reading
Request your trial
-
Beavers v. Williams
... ... § 37-901; Powell v. McKinney, 151 [199 Ga. 121] Ga ... 803, 811(4), 108 S.E. 23; Roach v. Terry, 164 Ga ... 421(1b), 138 S.E. 902; Kidd v. Finch, 188 Ga. 492, ... 496, 4 S.E.2d 187), and thus avoid a multiplicity of suits ... Even in a case where the defendant may not have had a ... ...
-
McGill v. Dowman
... ... proceeding alone to adjudge the title or grant a writ of ... possession. See Byrd v. McLucas, 194 Ga. 40, 20 ... S.E.2d 597, and cit.; Kidd v. Finch, 188 Ga. 492, ... 496, 4 S.E.2d 187; Dublin Veneer Co. v. Kendrick, ... 179 Ga. 237(1), 244, 175 S.E. 687; Sanders v ... Wilson, 193 Ga ... ...
-
Mitchell v. Turner
...Mortgage Corporation, 184 Ga. 724, 726, 193 S.E. 347, 114 A.L.R. 1022; Harrell v. Parker, 186 Ga. 760, 198 S.E. 776; Kidd v. Finch, 188 Ga. 492, 493, 4 S.E.2d 187; Candler v. Bryan, 189 Ga. 851, 8 S.E.2d 81; Bank of Macon v. Crossland, 65 Ga. 734(2); Collinsville Granite Co. v. Phillips, 12......
-
Ammons v. Central of Ga. Ry. Co., 20758
...plaintiff in error of any damages to which she may be entitled. Mendenhall v. Stovall, 195 Ga. 492, 494, 24 S.E.2d 795; Kidd v. Finch, 188 Ga. 492, 496, 4 S.E.2d 187. Judgment All the Justices concur. ...