Logan v. Logan
| Decision Date | 10 February 1966 |
| Docket Number | Nos. 23242,23280,23277,s. 23242 |
| Citation | 147 S.E.2d 326,221 Ga. 769 |
| Parties | Elgin K. LOGAN et al. v. Mary Jo LOGAN et al. Mary Jo LOGAN v. Elgin K. LOGAN et al. Kathleen Logan PHILLIPS v. Mary to LOGAN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where plaintiffs voluntarily dismissed their equitable petition against a necessary and indispensable party defendant, the executrix of the estate in dispute, it was error for the court to refuse plaintiffs' motion to re-instate such party defendant over her objection and to sustain defendants' general demurrers pointing out such defect in plaintiffs' petition.
2. The orders overruling appellees' general and special demurrers, which are complained of in the cross appeals, were not erroneous.
F. H. Boney, Summerville, for appellants Elgin K. Logan, and others.
Robert Edward Surles, Summerville, Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for appellees Mary Jo Logan, and others.
Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for appellant Mary Jo Logan.
F. H. Boney, Robert Edward Surles, Summerville, for appellees Elgin K. Logan, and others.
Robert Edward Surles, Summerville, for appellant Kathleen Logan Phillips.
F. H. Boney, Summerville, Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for appellees Mary Jo Logan, and others.
Elgin K. and Charles F. Logan brought their equitable petition against Kathleen Logan Phillips as an individual and as executrix of the estate of Lula K. Logan, deceased, and other named persons, all of whom including the plaintiffs were the sole surviving heirs of Lula K. Logan. The plaintiffs alleged that during the lifetime of their mother, a contract was entered into between them and their mother where on their performance in the operation and management of certain dairy and farming operations, and payment of 1/3 of the net proceeds of such operations to their mother during her lifetime, she would, by her will, leave certain real and personal property described therein to the plaintiffs in fee simple. It was alleged that the plaintiffs fully complied with their agreement, but their mother, now deceased, by will devised to their sister, the defendant Mary Jo Logan, certain real estate she had contracted to will to the plaintiffs. Plaintiffs also alleged that prior to her death, the mother had deeded to their sister, the defendant Kathleen Logan Phillips, certain described real estate which was part of the real estate their mother had contracted to devise by will to them.
Their prayers were that the defendants be specifically required to execute and deliver to the plaintiffs a deed conveying to them the land promised to be devised to them by the testatrix and that the deed from their mother to Kathleen Logan Phillips be canceled as being null and void.
To this petition the defendants, Kathleen Logan Phillips, individually and as executrix of the estate of Lula K. Logan, and Mary Jo Logan, filed their general and special demurrers. In their fourth amendment to the petition, the plaintiffs dismissed their action against Kathleen Logan Phillips, as executrix of the estate of Lula K. Logan and three devisees in the will of their mother. Thereupon said executrix and Mary Jo Logan filed their demurrers to the amended petition, one of the grounds being that the executrix of the estate was a necessary and indispensable party to the case, and she not being a party, the plaintiffs could not obtain any of the relief sought. The plaintiffs then by scire facias prayed that she show cause why she as executrix should not be made a party to the case. The executrix by special appearance and Mary Jo Logan objected to her being made a party. These objections were sustained. The court then entered an order sustaining the general demurrers of both parties on the grounds of the absence of the executrix she being an essential and indispensable party.
Case No. 23242 is here on the appeal of the plaintiffs Elgin K. Logan et al. and the cross appeals of Kathleen Logan Phillips, as an individual (No. 23280) and Mary Jo Logan (No. 23277).
1. The appeal. It is claimed that the court erred in denying the motion of the plaintiffs to make the executrix a party defendant. The court erred in this regard. 'Where for any cause it becomes necessary or proper to make parties, the judge shall cause a rule to be prepared, signed by him, either in term time or vacation, calling on the person to show cause why he should not be made a party, the answer to which rule may be heard in term or vacation.' Code § 3-404. 'In writs of scire facias for the purpose of making parties to any suit pending in the superior courts, it shall be sufficient to state the names of the parties, the term of the court to which said cause was made returnable, and the name of the suit or action, requiring the party to show cause why he should not be made a party to said cause, without setting forth the substance of the petition or the proceedings thereon.' Code § 3-412. 'Any person claiming equitable relief may make all necessary parties to secure equitable relief, either at the beginning of his suit or afterwards by amendment.' Code § 37-1005. 'Generally all persons interested in the litigation should be parties to proceedings for equitable relief * * *.' Code § 37-1004. Kathleen Logan Phillips, as executrix of the estate of Lula K. Logan, was a necessary and essential party. Hazelrigs v. Butler, 204 Ga. 98, 48 S.E.2d 727; Reeves v. Tarnok, 161 Ga. 838, 131 S.E. 891. The case of Simpson v. Brock, 114 Ga. 294, 40 S.E. 266, relied on by the appellees, is not in point here because there the plaintiff sought to re-instate the whole case which he had voluntarily dismissed.
2. Cross appeals. To the original petition, the appellees filed their general and special demurrers. After a hearing and orders on the original petition and three amendments, the court in each instance overruled to...
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Logan v. Logan
...and farming business after the death of their father. This case has been before this court on two previous occasions. Logan v. Logan, 221 Ga. 769, 147 S.E.2d 326; Logan v. Phillips, 222 Ga. 714, 152 S.E.2d The evidence shows that the plaintiffs and their father entered the dairy and farming......
- Simmons v. Watson
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Ezzard v. Morgan, s. 43590-43592
...whole case which he had voluntarily dismissed whereas here the plaintiff had not voluntarily dismissed the whole case. Logan v. Logan, 221 Ga. 769, 771, 147 S.E.2d 326. The trial court erred in sustaining the above motion to vacate the order of re-instatement previously entered by another j......
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Logan v. Phillips
...portion to the defendant Mary Jo Logan. These defendants denied the material allegations of the petition. This court in Logan v. Logan, 221 Ga. 769, 147 S.E.2d 326, affirmed the trial court as to the sufficiency of the petition in this case, but reversed as to denial of plaintiffs' motion t......