Mann v. Showalter
| Decision Date | 18 May 1916 |
| Docket Number | 434. |
| Citation | 88 S.E. 968,145 Ga. 268 |
| Parties | MANN ET AL. v. SHOWALTER ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A wife brought suit against her husband for temporary and permanent alimony for herself and her two children. The suit resulted in a settlement, and the attorney's fee was paid. Later the husband sought to obtain an agreement for a reduction of the amount of alimony which he was paying each month. The wife declined to agree to this, and consulted with the attorney who had previously represented her, and at his instance also with another, and made with them an agreement to represent her and her two children, upon a contingent fee of one-third of the recovery or amount received by settlement. A petition was filed by the attorneys on behalf of the wife, and the children, through their mother as next friend, attaching and seeking to set aside a decree of divorce which the their mother as next friend, attaching and seeking to anul and have set aside a second marriage into which he had thereafter entered. This resulted in a settlement. Certain realty and personalty were conveyed and transferred to the wife alone by the husband, or former husband, and a decree was taken confirming the conveyances and transfers which had been made, and decreeing in favor of the defendants as to the effort to annul the judgment of divorce granted in Tennessee, and the second marriage of the husband. Subsequently the former wife and the two children who were yet minors and sued through their mother as their next friend, brought an action against the attorneys who had filed the last-mentioned suit. The children alleged that they did not consent to the last decree, but did not attempt to set aside either the decree or the conveyances to their mother, which were confirmed by it. The petition alleged fraud on the part of the attorneys in procuring the contract for a contingent fee of one-third of the recovery, and in the settlement which was made with them by one of the present plaintiffs, who is the mother of the other two, whereby the attorneys received from her a conveyance and transfr of property of a value alleged to exceed one-third of that recovered, and sought to recover such property, subject to a reasonable fee for the attorneys, if they were entitled to any fee. Held, that as to the two children the petition was demurrable.
As to the mother of the two children the allegations were sufficient to withstand a general demurrer.
Under the allegations of the petition, the rule that, where one party to a contract seeks to rescind it for fraud, he must promptly, upon the discovery of the fraud, restore or offer to restore to the other whatever of value he has received by virtue of the contract, is not applicable.
A recital in a petition that a former action had been brought in the same court, the nature and purpose of which was to some extent stated, to which allegations were added the words "all of the allegations of which will be shown to the court," are not sufficient to make the former petition a part of the later one, so as to be considered as before the court in its entirety upon the hearing of a demurrer to the later petition.
Allegations that a person was induced to enter into a contract with others by certain representations, which were characterized as fraudulent, but not alleged to be untrue, were subject to special demurrer.
(a) A portion of the nineteenth paragraph of the petition was subject to the ground of special demurrer, and a part thereof was not so subject.
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Action by Mrs. Callie W. Showalter and others against W. E. Mann and another. Judgment for plaintiffs, and defendants bring error. Affirmed in part, and reversed in part.
M. C Tarver, of Dalton, and R. R. Arnold, of Atlanta, for plaintiffs in error.
C. D McCutchen, of Dalton, and Eubanks & Mebane of Rome, for defendants in error.
Mrs. Callie W. Showalter and her two minor children, who brought suit by her as their next friend, filed an equitable petition against W. E. Mann and W. C. Martin. The petition was amended. A general and special demurrer to it was overruled, and the defendants excepted.
Mrs. Showalter sued her husband for temporary and permanent alimony for herself and two children. This suit resulted in a settlement. Later the plaintiffs in the present case filed an equitable petition against Showalter and a woman whom he had married after obtaining a divorce in Tennessee, seeking to set aside such decree of divorce and to annul and set aside the second marriage. This case resulted in a settlement and consent decree. Under the settlement, Showalter conveyed and transferred certain real and personal property to Mrs. Showalter. She conveyed and transferred some of it to each of the present defendants, who had represented the case under a contract with her by which they were employed to bring the suit and were to receive a third of any recovery. The plaintiffs now seek to set aside the contract for such fees, and the conveyance and transfer of property to the defendants, and to recover such property, and the proceeds of such personalty as may have been sold. They alleged fraud on the part of the defendants in the procurement of the contract and in the procurement of the conveyance and transfer. By amendment it was prayed that, if the defendants were entitled to any compensation, a reasonable amount should be fixed, and the property be recovered subject thereto.
1. The suit naturally divides itself for consideration into two parts--the proceeding by the two children, who appeared by their mother as next friend, and that by the mother on her own behalf. In the previous case, upon settlement, a consent decree was taken. It recited that:
"Whereas, all of the parties to the above-stated cause have consented that said cases be heard and disposed of at the first term of the court; and whereas, all property rights in dispute between the plaintiff and the defendant in the above-stated case have been adjusted between them as follows: [Reciting that certain property had been conveyed to Mrs. Showalter and that certain property was to be hers.]"
It was decreed that the transfers described be confirmed. Then came the following clause:
"It is further ordered and adjudged by the court that the defendant, A. J. Showalter, be relieved from any further liability as to the support of the two minor children mentioned in said bill, and that the support, education, and maintenance of the two said minor children be assumed by the plaintiff, Callie W. Showalter, in this case."
It was further decreed that the prayer to annul the decree of divorce be refused, and that such decree be confirmed as a valid decree and binding upon the parties to it; also that the prayer to annul the marriage between Showalter and his second wife be denied, and the marriage be adjudged to be valid. The property now in controversy was part of that referred to in this decree. The conveyances and transfers to Mrs. Showalter were thus confirmed.
Minors who are parties to a case, appearing by their next friend are bound by the judgment rendered therein, though it may be subject to be attacked for proper cause. Lowe v. Equitable Mortgage Co., 102 Ga. 103, 29 S.E. 148; McMillan v. Hunnicutt, 109 Ga. 699, 35 S.E. 102; Ross v. Battle, 113 Ga. 742, 39 S.E. 287. In this case, while the children allege that they did not agree to the settlement, or to the contract with the defendants as to fees, and that they had no guardian, they do not seek to set aside the decree or the conveyances and transfer to their mother. Nor are the adverse parties to the case resulting in that decree parties here. On the contrary, the children are now seeking to claim an interest in the proceeds of the settlement, which was confirmed by the decree. Their mother, who received the conveyances in her own name, which were confirmed by the decree, is not made a party defendant, and a claim asserted against her, or an effort made to reform or set aside the conveyances. But she appears in this case for herself and as next friend of her children, relying on such conveyances and seeking to recover what she has conveyed and transferred to the attorneys who represented the case. It may be remarked that it is an anomalous proceeding for children in this state to file, or join in, an equitable petition against their father, seeking to set aside a decree of divorce obtained by him in another state and to have a second marriage subsequently contracted by him declared void. No law has been brought to our attention authorizing them to do so. It is not necessary to discuss whether a wife, suing for alimony for herself and children, may bind them by a contract for fees. Under the allegations and prayers of the present petition, the two children, represented by their mother as next friend, have no right to recover;...
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