Maxwell v. Cofer
| Decision Date | 05 September 1946 |
| Docket Number | 15543. |
| Citation | 39 S.E.2d 314,201 Ga. 222 |
| Parties | MAXWELL v. COFER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under an order properly sustaining a ground of demurrer, with the right of the plaintiff to amend the petition within five days 'or else said petition is to be considered dismissed,' the petition became automatically dismissed where an amendment, though 'filed,' was not 'allowed' by the court.
(a) Court of record retain full control over their own orders and judgments, where not based on jury verdict, during the term in which they are entered, as such orders and judgments remain 'in the breast of the court.'
(b) It is a general principle of law that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered; but this does not apply where proceedings to vacate the judgment were begun during the term in which the judgment was rendered.
On February 25, 1946, Mrs. W. L. Maxwell filed a petition to the May, 1946, term of Wilkes superior court against M. P. Cofer Mrs. M. P. Cofer, and the Pope Lumber Company, alleging in substance the following: On August 10, 1934, a judgment was rendered against M. P. Cofer, which was revived February 10 1942, and a fi. fa. issued thereon. The original fi. fa. was for $1,500, but now amounts to $1,920, and the petitioner is now the owner and holder of the same. On October 1, 1934, M P. Cofer, as head of a family and as having the care and support of dependent females, obtained a homestead on a described 336-acre tract of land in Wilkes County. At that time there were encumbrances amounting to $450, and the equity therein was valued at $1,300, though these encumbrances have been removed. The only remaining beneficiary of the homestead is his wife, Mrs. M. P. Cofer. There is a quantity of valuable pine and hardwood timber located on said lands, all of which was growing when the homestead was assigned, and now worth $2,500. The timber has been sold to Pope Lumber Company, and M. P. Cofer and others have commenced to cut the standing timber with the intention of sawing or moving the same away, and $2,500 has been or will be derived from the sale of the timber, whether it is hauled away in logs or cut into lumber. The beneficiaries of the homestead have not applied for the right to sell said timber or to invest the proceeds derived therefrom. The homestead property is subject to sale for reinvestment under proper order of the court, and the plaintiff does not object to a sale under proper restrictions; but, if the property is sold without being reinvested under court order, the funds derived from said timber will be dissipated and hid away and will not be forthcoming to answer the fi. fa. when the homestead terminates. M. P. Cofer has no other property on which said fi. fa. could be enforced, and the plaintiff's sole chance of collecting said fi. fa. is from the homestead property at the termination of the homestead, and the value of the property when said homestead terminates cannot now be ascertained. It was further alleged that the plaintiff has been forced to employ counsel to protect her rights, and that $250 is a reasonable fee therefor.
The plaintiff prayed that the defendants be enjoined; that, if the sale be permitted for the purpose of reinvestment, an order to that effect be granted; that funds derived therefrom be ordered reinvested by the court with proper security given, so that the funds may remain undiminished until the termination of the homestead; that attorney's fees be allowed; and that process issue. A temporary restraining order was granted.
The defendant filed a demurrer and an answer. On March 30 the demurrer was argued, and evidence of both the plaintiff and the defendants was heard, the judge reserving his decision on both the demurrer and the evidence. Subsequently, on April 15 the court granted a restraining order enjoining Pope Lumber Company from paying out any funds due for said timber. Upon the same date the court passed upon the demurrer.
The grounds of demurrer were: 1. That the plaintiff does not allege facts which give her standing in a court of equity to pray the relief sought in said petition. 2. That no cause of action is set forth in said petition. 3. That the plaintiff does not allege in her petition that the value of the homestead estate has been or will be decreased by the cutting of said timber, or that her rights will be affected by such cutting. 4. That the plaintiff does not allege that the cutting of said timber is legal waste, or such as amounts to a use of the homestead estate by the beneficiary of the estate in her capacity as life tenant, that is, it is not the use of a prudent man in the exercise of ordinary care for the preservation of the estate. 5. That the plaintiff does not allege that the cutting of said timber tends to the permanent injury of the person or persons entitled to the homestead estate after its expiration. 6. That the plaintiff alleges no facts on which to base her claim for attorney's fees as set forth in paragraph 10 of her petition, and a claim for attorney's fees sets forth no cause of action.
The court rendered the following judgment:
There was a misunderstanding on the part of the plaintiff's attorneys as to the meaning of the order upon the demurrer, and some correspondence between them and the judge with delay in the delivery of letters by the mail. Plaintiff 'filed' an amendment within the five days, but did not have it 'allowed' by the court.
On April 22 the judge advised the plaintiff's attorneys that their failure to present their amendment and have him allow it had caused the court to doubt its right to proceed further in the matter, having possibly lost jurisdiction. On April 29 the plaintiff filed a petition to vacate the former judgment of April 15, providing for five days to file an amendment to the petition, and therein recited certain facts, including the correspondence between the plaintiff's attorneys and the judge relating to their failure to have the amendment 'allowed' by the court. This petition to vacate the former judgment was made returnable to the first day of the May term of court, which was the appearance term of the case as originally filed. During the same May term, the defendants filed a petition to dismiss the case, and for a revocation of the restraining order previously granted and unrevoked. Upon hearing these two motions, the court on May 10 passed two orders, one overruling the motion for the plaintiff to vacate the previous judgment, and the second order sustaining the defendants' motion to dismiss the case, and revoked the restraining order previously granted; assigning as a reason in each order that the court had lost jurisdiction of the case upon the failure of the plaintiff to properly amend...
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Gray v. State
...during the term, they may be continued over and the judgment set aside or modified after the expiration thereof."); Maxwell v. Cofer , 201 Ga. 222, 227, 39 S.E.2d 314 (1946) ("[F]or the reason that proceedings so to do were begun during the same interim between courts as that in which the j......
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Bowen v. State
...conflicting lines of decisions as to when a court could amend or revoke its judgment. One line of cases followed Maxwell v. Cofer, 201 Ga. 222(a), 39 S.E.2d 314, which held: "Courts of record retain full control over their own orders and judgments, where not based on jury verdicts, during t......
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Ga. Gov't Transparency v. State Mut. Ins. Co.
...unchanged by the Civil Practice Act, to change its final judgment during the term of court in which it is rendered. Maxwell v. Cofer, 201 Ga. 222, 226, 39 S.E.2d 314 (1946); Ammons v. Bolick, 233 Ga. 324, 325, 210 S.E.2d 796 (1974). As to change to a final judgment at subsequent terms of co......
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McQueen v. Wilson, 43182
...which would authorize the trial judge to enter a different order after the term ended. For this reason, the cases of Maxwell v. Cofer, 201 Ga. 222, 226, 39 S.E.2d 314, citing Miraglia v. Bryson, 152 Ga. 828(2), 111 S.E. 655; Pappadea v. Clifton, 96 Ga.App. 115, 99 S.E.2d 455; Tyler v. Euban......