Latimer v. Irish-American Bank

• Decision Date: 30 March 1904
• Citation: 47 S.E. 322,119 Ga. 887
• Parties: LATIMER v. IRISH-AMERICAN BANK et al.
• Court: Georgia Supreme Court

47 S.E. 322

119 Ga. 887

LATIMER v. IRISH-AMERICAN BANK et al.

Supreme Court of Georgia

March 30, 1904

Syllabus by the Court.

1. The first term of an equity case is the trial term, when all the parties consent. It follows that, when such consent is given the parties have the same rights and liabilities at the first term that they would have in the trial of the case at the second or any subsequent term.

(a) A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which, under the rules of law, might have been put in issue, in the cause wherein the judgment was rendered.

(b) The exception to the foregoing rule, in cases in which the party had a good defense of which he was entirely ignorant, or was prevented from availing himself of his defense by fraud, or accident, or the act of the adverse party, is unavailing unless these grounds of relief are unmixed with negligence or fault on his part.

(c) Objections to the pleadings on both sides are required to be made at the first term.

2. A defendant in every case may set up in his answer any matter which, under the English rule, should be the subject of a cross-bill.

(a) Where the petitioner in an equitable proceeding for a partition seeks to charge her severed interest with her debts to the defendants, their answer, praying a judgment for their debts, is germane to the petition.

(b) Equity does nothing by halves, but gives complete relief.

3. Although the debts on which the decree was rendered in the equitable partition proceeding were not quite due, the decree will not be reopened on that ground alone; it appearing that the plaintiff in that proceeding set out these debts in her petition for partition without any reference to their not being due, that she made no objection at the hearing of the case on that account, and that the notes evidencing her indebtedness matured before the bill of review was filed, and before any effort was made to enforce the decree as to these debts.

4. The pleadings in the partition case were sufficient to authorize the decree rendered.

5. It was not necessary to the validity of the decree that the answers of the defendants should have been marked "Filed" by the clerk; the answers having in fact been in the hands of the court, and having been considered in making the decree.

6. While inadvertent errors in a decree may be corrected, the general rule is that a bill of review will not lie against a consent decree.

7. There is no specification of any fraud in the procurement of the decree.

Error from Superior Court, Richmond County; W. T. Gary, Judge.

Action by Annie K. Latimer against the Irish-American Bank and others. Judgment for defendants, and plaintiff brings error. Affirmed.

E. H Callaway, for plaintiff in error.

W. K. Miller, D. G. Fogarty, J. C. C. Black, and Wm. H. Barrett, for defendants in error.

TURNER J.

This case comes to this court upon a writ of error sued out by Annie K. Latimer, the plaintiff in the court below, who thus brings under review the judgment of that court dismissing an equitable proceeding instituted by her against the Irish-American Bank and certain other parties defendant. The nature of this proceeding, as well as the allegations upon which she relied for the relief sought, may readily be gathered from the following statement of the case set forth in the brief submitted by her counsel: "Plaintiff in error brought an equitable petition against defendants in error, for the purpose of setting aside certain judgments rendered against her in a decree in a partition proceeding in Richmond superior court on October 22, 1901. *** Her petition and the exhibits thereto set forth the following facts: In September, 1901, plaintiff owned a one-fifth undivided interest in the estate of her father, which also covered the trust estate left by her mother. The remaining four-fifths interest in said estates were owned by her brother, W. C. Pollard, and her three sisters, Mrs. Brantley, Mrs. Stuart, and Mrs. Giles. Her brother, W. C. Pollard, her husband, W. E. Latimer, and her brother-in-law, H. R. Stuart, were the administrators upon her father's estate. Latimer, her husband, was heavily involved, owing a large indebtedness, among others, to the defendant banks, who were threatening criminal prosecution. Under these circumstances, plaintiff, at the instance of her husband, her brother, and brother-in-law, during September, 1901, executed the following notes and conveyances, all to be used in paying off and securing her husband's indebtedness: September 16, 1901, to Martin & Bush, $750, with conveyance of one-fifth undivided interest in father's and mother's estates, as security; September 17, 1901, note to Stuart for $800, and to Pollard for $400; September 26, 1901, conveyance to Pollard and Stuart of her one-fifth undivided interests in said estates to secure said notes; September 27, 1901, to Pollard, two notes, one for $225, the other for $774.43; and on the same date a third conveyance to Pollard on her one-fifth undivided interest in said estates--all of said notes maturing 60 days after date. Plaintiff received no money on any of said obligations, except the note to Martin & Bush. The money received from them was delivered by her to her husband. All the notes and conveyances executed by her to Pollard and Stuart were immediately transferred by them to Irish-American Bank and National Exchange Bank to secure indebtedness due by Latimer, plaintiff's husband, to these banks, and to prevent his prosecution. On September 28, 1901, an application for partition was prepared by the attorney for the three administrators, and plaintiff, with her sisters, signed the same in person at the instance of said administrators. This petition for partition recited the indebtedness represented by the notes which plaintiff had signed, and the conveyances, and contained a prayer that the indebtedness represented by said notes and the liens of the instruments securing the same should be made a charge against petitioner's separate, segregated interest in said estates, instead of upon the one-fifth undivided interest in the whole, and also contained a consent for a trial at the first term by the judge without a jury. The two defendant banks and Martin & Bush were made parties on account of the change requested in the lien of their conveyances. All the defendants acknowledged service September 28, 1901. There was a joint answer by Martin & Bush and the two banks, stating only the amount of their indebtedness, and that they held a lien, and praying for judgment. But the character of indebtedness was not stated, neither the dates nor the maturity were given, and no allegation that it was due, and the answer does not appear to have ever been filed. There was an answer by the three administrators, which, in the last paragraph, stated the amount of indebtedness which Pollard and Stuart claimed against plaintiff, without more. This answer is not marked 'Filed.' Plaintiff never saw or heard of either of these answers until the filing of her present suit. On October 22, 1901, the first day of the October term of the court, nearly a month before the maturity of any of said indebtedness, without any notice whatever to plaintiff, the attorney for the three administrators and the attorney for the two banks took a decree from the judge alone, without the intervention of a jury, partitioning the property, assigning to plaintiff one-fifth of the same, and entering up judgment against her in favor of Martin & Bush and the two banks and Pollard and Stuart, the two administrators, in principal sums aggregating $3,763.02, which was $813.59 more than the aggregate amount of the notes which she had executed in September. No further steps were taken in the matter, and no effort made to enforce this decree, or the judgments rendered therein, until January 30, 1902, after the adjournment of the October term of the court, when executions were issued, and plaintiff for the first time knew that said judgments had been entered, when she immediately filed the present petition to set the same aside. Upon the maturity of the notes in November, 1901, after the decree had been rendered, the banks, holding these notes of plaintiff under transfer from Pollard and Stuart, had the same protested."

The court sustained a general demurrer and motion to dismiss the plaintiff's petition, and she excepted. On the argument of the case before this court, counsel for the plaintiff in error contended that the judgments rendered against her in the trial court on the original petition for partition, etc., should be set aside for the following reasons, which are set forth in the brief filed in her behalf:

"(1) Because the notes which she executed and the transfers of her property were obtained from her by her husband, brother, and brother-in-law, who are the administrators on her father's estate, and were transferred to the banks, for the purpose of suppressing criminal prosecutions against her husband, and that all these facts were known to and participated in by the banks. (2) Because the answer of Martin & Bush and the two banks and of the administrators, setting up indebtedness against plaintiff, were so meager and defective that no legal or valid judgment could be rendered upon the same. (3) Because the petition filed, which was signed by plaintiff and her sisters, was a partition proceeding on its face, and contained nothing to indicate or suggest that judgments would be rendered therein in favor of the defendants, especially on notes not due, and the answers asking judgment were not germane to the same. (4) Because plaintiff had no notice, knowledge, or information of the existence of

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